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What legal rights do detainees in the George W. Bush administration's war on terrorism have? Does the executive branch have the authority to hold terror suspects without providing them access to the courts? The status of detainees pits those who stress wartime national security requirements against civil libertarians who claim such detention violates the U.S. commitment to the rule of international law & the Constitution.

The author of this chapter argues that Oakeshott's lack of a sustained argument about law does not preclude the construction of his view of law & the state from dispersed sources. In "On Human Conduct" & "The Rule of Law," Oakeshott presents two distinct perspectives on law: natural law verses legal positivism, & limitation on law as a manifestation of sovereign authority. The conceptualization of the modern state as an association of those who acknowledge the same sovereign authority to give shared law is imperfectly specified, posing the question of the placement of the state as subject to the law or maintaining an extra-legal place. On the epistemological level, law requires knowledge of the law. Although natural law contains natural justice or natural reason, it cannot satisfy this epistemic requirement. Legal order also has this dualistic character. Oakeshott interpretation of a Hobbesian treatment of the law limits the existence of civil society to two conditions: acknowledgement of the authority of a sovereign government & government rules by the law. But, Oakeshott's view of the state as an ambiguous association reveals an opening for the superimposition of purposive entities in which the rule of law has no part. 13 References. J. Harwell

Provides an overview of the status of gender in US hate crime policy. Discussion opens with a look at the concept of hate crime, highlighting its 1970s discursive emergence & three highly publicized cases during the late 1990s. How gender has & has not figured into institutionalized legal response to bias-motivated violence is then examined in terms of the parameters of hate crime law in general, content of state & federal hate crime law, & enforcement of gender provisions in hate crime law. Gender is seen as sort of second-class in the US social, political, & legal discourse. The inclusion/exclusion of gender in hate crime law raises the larger issue of how to resolve the dilemma of difference in policy & law making; this is taken up in closing, arguing that the inclusion of gender in hate crime policy allows the "sameness-difference" debate to be solved in a manner that treats (1) females as simultaneously a special category of crime victim & the same as other hate crime victims & (2) perpetrators of gender-based crime as simultaneously a special category of offender & the same as other types of bias-motivated offenders. 4 Figures. J. Zendejas

Discusses the potential of various sensory-enhancing technologies in terrorist situations & the legal & constitutional questions raised by their use. The utility & efficiency of ambient light magnification, audio amplification, infrared lighting, & radar are compared. The potential for abuse of Fourth Amendment privacy rights, as seen in the 1967 Katz v. US case, & the legal implications of specific applications of these technologies in "classic" (drug interdiction) & "nonclassic" (counterterrorist) situations are assessed. It is shown how courts rely on passive vs penetrative technology distinctions to resolve these issues & how improvements in technology could provide a more accurate audio & visual record of terrorist incidents. These distinctions may influence the development & marketing of future sensory-enhancing technologies. T. Arnold

To identify the ethical standards for the United Nations High Commissioner for Refugees (UNHCR), its role in developing & promoting the concept of temporary protection in Western Europe for Bosnian refugees is examined. It is asserted that temporary protection failed legally, ethically, & politically. The policy is also viewed as a failure in principle, with the UNHCR departing from obligations related to refugee treatment & protection. The legal & ethical framework that should govern the UNHCR is discussed in terms of a code of conduct & pragmatic concerns, arguing that there must be a balance struck between principles & pragmatism. Highlighted is the need to separate organizational interests from functional goals. A call is made for Western European adherence to human rights principles in the refugee/immigration realm before turning to the arguments proffered to justify the temporary protection policy. Some historical background to the temporary protection policy is provided. Temporary protection generated ambiguity with respect to the status of Bosnian refugees & the relevance & content of the 1951 Convention, which governs refugee issues. Deficiencies of protection are discussed in terms of the denial of rights. The UNHCR's problematic role in the development of international refugee law is then contemplated, suggesting that its temporary protection proposal was less about refugee law than about preserving the 1951 Convention. In this light, it is argued that the populace of the Western European states must be committed to the moral values underpinning any international refugee law. Two ways that temporary protection might have enhanced refugee protection in Europe are offered, acknowledging their failure upon closer scrutiny. Although temporary protection failed in Western Europe, it did provide some benefits to refugees in the South. Noting that the UNHCR is perpetually underfunded, it is contended that the Commissioner ought to be consistent & impartial. Ultimately, the UNHCR's temporary protection proposal failed because it did not promote the moral values underlying human rights. J. Zendejas

The extent to which justice principles underlying the decision in the Nuremberg war crimes trial have been applied in subsequent war crimes prosecutions is studied. After critiquing realist positions on US military intervention in foreign nations, it is claimed that regionalism & globalization processes have damaged the feasibility of holding all state leaders accountable for criminal activity undertaken during times of war. It is argued that the notion of rendering state leaders individually accountable for war crimes essentially challenges the notion of state sovereignty; in addition, the issue of whether the Nuremberg guidelines should have been applied to US leaders immediately following the Vietnam War is considered. Several factors responsible for the re-surfacing of support for the use of Nuremberg tribunals during the 1990s are identified, resulting in the assertion that such an international court would be geopolitically convenient for trying war crimes. The pressures that global civil society have placed on international organizations to develop an international criminal court & the implications of a Spanish criminal court's attempt to extradite A. Pinochet, in 1998, for war crimes for the perpetuation of the Nuremberg philosophy are also considered. Future prospects for holding state leaders accountable for wartime criminal behavior are contemplated. J. W. Parker

Questions concerning the United Nations legal authority to promote democratization & its reasons for favoring democratic political systems in the politically variegated international community are addressed. It is demonstrated that the United Nations has regularly influenced the development of political systems in various countries, has strongly advocated self-determination, & has actively promoted democratization in consenting nations. However, the United Nations support for democratization is delineated as coercive, eg, the United Nations Security Council determines the criteria for legitimate military intervention in foreign countries & Chapter VIII of the United Nations Charter allows member-states to intercede in regional disputes. After illuminating the coercive nature of the United Nations intervention in Haiti, Sierra Leone, & Somalia, it is maintained that the organization should establish a normative framework for judging the legitimacy of military intercessions; several principles to be included in this model are articulated, eg, representatives of member-states that obtained power through illegitimate means should not be seated in the United Nations. J. W. Parker

Discusses the function of law in setting & ensuring the system by which legal & political powers are allocated within the US & EU. Three fundamental views about federalism lay the groundwork for the analysis. First, federalism -- ie, the distribution of power among separate vertical tiers of government -- is vigorously able to foster a host of values highly esteemed within liberal modern democracies, such as freedom, diversity, self-determination, accountability, & the numerous mechanisms identified with regulatory competition. Second, even while the US sets forth an expanding range of cooperative international regimes in which interest in the distribution of domestic government authority has no apparent role, we still are concerned with safeguarding & fostering federalism concepts. Last, it is assumed for the sake of this argument that the distribution of power is basically a subject issue, not a functional distribution. K. Coddon

Compares the Canadian & Australian legal traditions -- both premised on the British common law traditions of judicial precedent -- by way of the law of sexual assault, highlighting the parallel development of corroboration doctrine & the evidentiary prescriptions constructed by legislators, lawyers, & judges. R. v. Sullivan (1913), decided in Perth, Western Australia, & Hubin v. the King (1927), decided in Winnipeg, Manitoba, are scrutinized for the judicial reasoning arising from sexual assault proceedings that typified trials focused on the doctrine of corroboration. It is argued that one idea active in criminal law during the early 20th century was that women & children lacked credibility when it came to testifying about sexual assault. The two 13-year-old plaintiffs are characterized as highly credible, particularly relative to the defendants. However, the doctrine of corroboration made it far more difficult to secure convictions in cases of carnal knowledge of young girls. The kind of additional evidence required to meet the standard of corroboration is considered, arguing that its legal definition did not entirely accord with the contemporary parlance. How the doctrine of corroboration was handled during each trial is then examined in detail, demonstrating the narrow interpretation of mandatory statutory corroboration provisions by appellate judges who overturned the initial convictions out of concern for potential false accusations. The deep suspicion accorded the testimony of women & girls underpinned a whittling down of the doctrine of corroboration such that the credibility of female plaintiff's was easily dismissable while the testimony of guilty men weighed more heavily in the decision. J. Zendejas

"The governance of the European Union (EU) today represents a new form of legal pluralism. It involves relations between numerous sites of governance (Snyder 2000, 2002), encompassing the EU and its Member States but also including other institutions such as the World Trade Organisation (WTO). Both the European Court of Justice (ECJ) and the Court of First Instance (CFI) have contributed significantly to its construction. Especially since 1995, an increasing number of judicial decisions have created a dense web of relations between the EU, its Member States and the WTO. This chapter explores the ways in which the European courts have so far constructed this new form of multi-site governance. The chapter consists of three main parts, each focusing on a different strand in the emerging relations of multi-site governance. The first part discusses the integration of WTO law into EC law. The second part focuses on the position of individuals. The third part considers relations between WTO, the EU and the EU Member States. As summarised in conclusion, the European courts have articulated new relations between sites of governance which continue to reshape the distribution of law-making power in Europe." (author's abstract)

Challenges underlying images of "prostitute" & "illegal alien" in portrayals of women who have been smuggled into countries for sexual exploitation, arguing that these descriptions encourage further use & abuse of trafficked women by the state. It is contended that the legal construction of women forced into prostitution as "immoral, illegal migrants" hampers effective policy making & law enforcement against human traffickers, & prevents the women from getting needed legal protection/assistance. Instead of the current, counterproductive aggressive enforcement of migration laws, it is maintained that forced prostitution should be addressed as a problem caused in part by immigration law, & supported by gender inequalities as well as the vulnerable legal position of its victims. The double stigmatization of forced prostitutes as illegal & immoral prevents uncovering the true nature of existing inequalities, restrictive migration policies, & sex services as a global business. It is suggested that states must shift their focus from illegal migration to preventing the exploitation of human beings & protecting its victims. 75 References. J. Lindroth

Challenges underlying images of "prostitute" & "illegal alien" in portrayals of women who have been smuggled into countries for sexual exploitation, arguing that these descriptions encourage further use & abuse of trafficked women by the state. It is contended that the legal construction of women forced into prostitution as "immoral, illegal migrants" hampers effective policy making & law enforcement against human traffickers, & prevents the women from getting needed legal protection/assistance. Instead of the current, counterproductive aggressive enforcement of migration laws, it is maintained that forced prostitution should be addressed as a problem caused in part by immigration law, & supported by gender inequalities as well as the vulnerable legal position of its victims. The double stigmatization of forced prostitutes as illegal & immoral prevents uncovering the true nature of existing inequalities, restrictive migration policies, & sex services as a global business. It is suggested that states must shift their focus from illegal migration to preventing the exploitation of human beings & protecting its victims. 75 References. J. Lindroth

"Rampant corruption and declining regime legitimacy force the Communist Party to reform the political and legal system of the PRC. There are different opinions on how far these reforms have affected Chinese authoritarianism so far. While some observers have identified a higher degree of regime legitimacy achieved by gradual political liberalization in recent years, others have stated a reconsolidation of non-democratic one-party rule providing only temporary stability for the political system at best. The PRC leadership, for its part, has repeatedly claimed to work towards 'socialist democracy' by separating the Party from the government and subjecting the system to the rule of law. The institutional foundations of 'socialist democracy' may have been spelled out by Beijing scholar Pan Wei by his idea of 'consultative rule of law' modelled along the Hong Kong and Singaporean examples. This paper reconstructs Pan Wei's basic argument for such a system and discusses both its conceptual consistency and political practicability. It is suggested in this article that reforming Chinese authoritarianism by implementing legal reforms, a modern civil service structure and more mechanisms of political consultation might work for some time. It is argued, however, that 'consultative rule of law' cannot sustain one-party rule in the long run." (author's abstract)

Discusses the 1963 stripping & parading of four naked dalit women in the village of Sirasgaon, India, to explore the production of knowledge about dalit women & the nature of anthropological narratives dealing with issues of caste & gender. The relation between dalit women's caste-specific differences & mainstream Indian feminism is explored, along with the judicial discourse surrounding the incident in Sirasgaon. It is argued that the avoidance of descriptions of the atrocious event itself in the documents, & the lack of serious legal consideration given to questions of untouchability or violence against women, reveal how various forms of untouchability are elaborated & disciplined, as well as how dalit women are constituted through critical events managed by legal mechanisms. Other issues explored are the position of certain aspects of Indian society in the domain of juridical reason, & the political basis for how the identities of dalits & others are expressed in legal arguments. The need to rethink modes of intellectual inquiry & practice in relation to gendered caste violence is discussed. 45 References. J. Lindroth

Rather than use ad hoc international tribunals or permanent international courts to conduct prosecutions against people accused of committing war crimes, it is contended that such trials should take place within the legal systems of the nations in which such individuals possess citizenship. It is contended that most countries would demonstrate strong resistance to handing over suspected war criminals to international tribunals or courts. Rather than identify single individuals as responsible for committing war crimes, it is suggested that offending nations must be held collectively responsible for war atrocities perpetrated by its citizens. Consequently, it is maintained that permitting offending nations to hold such proceedings would allow offending countries to maintain sovereignty & force them to reconcile relations with victimized groups by acknowledging their collective responsibility for war crimes. Moreover, it is claimed that the proposed alternative would sidestep offending nations' frequent disapprobation of decisions passed down from international tribunals & courts. J. W. Parker