Suchergebnisse

Moral & legal reasons for opposing the use of ad hoc international tribunals to try suspected war criminals are questioned. The question of whether war crimes trials would violate the formal & substantive guarantees of legal equality is considered; it is revealed that war crimes trials will demonstrate some selectivity but that such arbitrariness will not exceed that found in municipal courts. It is stated that war crimes trials achieve ethical & legal legitimacy by incapacitating convicted offenders & deterring individuals from committing future war atrocities. Although it is agreed that certain punishments do not completely deter criminals from committing municipal or war crimes, it is maintained that punishment does reduce such individuals' criminal activities. The popular position that war crimes trials should be held in the offenders' home nations is rejected; rather, noting the rise of nonstate jurisdictions, it is claimed that a permanent international court must be established to prosecute suspected war criminals. J. W. Parker

The issue of whether war crimes should be considered as a moral, legal, or political category is addressed. It is initially contended that only "crimes against peace" should be considered war crimes since other traditional categories of war crimes (eg, violations of human rights) remain criminal in nature outside the context of war. Moreover, it is claimed that crimes against peace possess specific moral & legal difficulties since defeated parties are generally labeled war criminals. The tendency to equate military success in war with absolution from blame is subsequently questioned on moral & legal grounds; specifically, it is argued that prosecuting those who achieve military victory may infringe on a state's universal right to self-defense. Moreover, the capacity to bring charges of war crimes against parties regardless of the outcome of war is deemed problematic since such reasoning suggests that certain entities have a right to victory during war. Consequently, it is maintained that only aggressor states that are defeated during war can legitimately be prosecuted. It is concluded that prosecutions of parties accused of committing war crimes ultimately constitutes a political act. J. W. Parker

An examination of the judicial treatment of migrant criminality focuses on the complex interaction between immigrants & the receiving society. Formal & informal procedures related to migrant crime are described, along with the cognitive & moral dimensions that impact both court life & the social construction of migrant crime. Empirical findings regarding petty crimes & drug-dealing cases in Italy are presented to illustrate the structural weakness of the legal position of migrants, ways in which the judicial system uses its discretionary power to contribute to definitions of what is criminal, & how migrant criminality as a social fact helps to explain various social, legal, psychological, cultural, & political aspects of migrant criminality. Special attention is given to the role played by law enforcement & prosecution practices in defining the boundaries between informal & criminal, as well as how institutional & political decisions involved in the social construction of immigrants' criminality lead to perceptions of immigrant crime as a cause for social insecurity. 4 Tables, 40 References. J. Lindroth

Maintains that the US Supreme Court's current "minimalism" was clearly demonstrated in their decisions related to the 2000 presidential election, especially their unanimous decision to remand to the FL Supreme Court for clarification in Bush v. Palm Beach County Canvassing Board. The 5-4 decision in Bush v. Gore was also minimalist because it professed to resolve the issue without proposing any future remedies. Although the US Supreme Court did the nation a service by ending the chaotic postelection period, & might even have avoided a constitutional crisis, it is argued that the decision not only was bad from the standpoint of legal reasoning, but also produced "order without law." The process of the US Supreme Court's involvement in the 2000 presidential election is outlined, & each step is discussed in terms of both its merits & its problematic reasoning. Possible outcomes if the Court had affirmed the FL Supreme Court are explored & the implications of the Court's decision for the future of equality in voting are discussed. J. Lindroth

An exploration of how states incorporate indigenous legal traditions into laws of the wider state focuses on common law, customary law, & self-government. Different internal logics & moral/political implications of the three modes of incorporation are detailed. Common law is not a law per se but a kind of social situation that affects broader laws. More status is given to indigenous law when it is incorporated as a separate system of customary law, & the most status is accorded in situations where self-government is the basis for recognizing indigenous laws; however, greater status does not guarantee more or preferable rights to indigenous people. Customary incorporation usually involves the legal right to maintain usage of traditional lands while common law incorporation tends to produce stronger property rights in the form of collective freehold ownership. Variations among states are discussed, noting the emphasis on the self-government mode in the US & Canada, & preference for customary incorporation & common law incorporation in South Africa & Australia respectively. Mechanisms that led to different modes of incorporation are explored. J. Lindroth

Is the European Union (EU) a state, an international organ, or a new example of "postsovereign" power & administration? An attempt to determine the EU's role is made through examination of community law for its relation to European integration. The community legal system, including recent adaptations & cases, is reviewed. There is exploration of legal pluralism & the development of the relationship between community law & the European Court of Justice (ECJ), along with the roles of member state administrators, institutions, European law, community law, enlargement, & social context. The ECJ's position regarding sexual equality is viewed. Consideration of community law & regulatory order are heightened by citation of the Cassis de Dijon case of 1979. Debate over the EU's role regarding maintenance of order & security is elucidated. Development of the Justice & Home Affairs branch of the EU is detailed, considering its jurisdiction, policies, conflicts, & potential. 18 References. M. C. Leary

An introductory chapter maintains that the controversial decisions of the US Supreme Court in Bush v. Gore raise significant questions about the nature & practice of political equality. A chronological overview of events in the 2000 presidential election details the legal process from early TV announcements that Al Gore had won FL, through attempts at certification, calls for hand counts, injunctions to stop them, the struggle between Florida's secretary of state & the FL Supreme Court, & the final appeal to the highest court in the land. The essays by leading scholars of constitutional & electoral law offer differing opinions about the legality & defensibility of the US Supreme Court's actions. It is contended that their decision fits within the framework of a "neorealist account of legal judgment," which suggests that, in some cases, people's ultimate judgments are dominated by their initial emotional evaluation. Other factors involved in how people, including judges, make decisions in controversial situations are discussed. A synopsis of each chapter is included. J. Lindroth

The issue of whether groups possess moral, legal, & political rights to secede is addressed; in addition, the prospects of reconciliation between self-determining nations & the countries from which they seceded are considered. Whereas an analysis of positive law failed to provide support for a group's right to secession or independence, a review of moral arguments for self-determination provided ambiguous support for a moral right to secession. Questions regarding a seceding nation's capacity to produce justice & realize sustainability are cited to challenge the existence of a political right to secession. It is argued that reconciliation between self-determining nations & countries from which such nations seceded is generally difficult since countries in the latter group experience problems in dealing with losses of authority & property. Consequently, it is concluded that secession cannot create stability without exerting significant moral, legal, & political costs. J. W. Parker

The interface between an institution concerned with the administration of justice (the London Police Dept) & the body is examined, using as points of departure a London map used to investigate sex-related offenses (homosexuality & prostitution) & a London police report on plainclothes officers' surveillance of public lavatories. These documents present law as a cartographic technology that produces a spatial order for law & a set of practices of the body as legal technique. The map portrays the landscape of bodily perversion in London. Policing is accomplished with the visible body as agent, or the invisible body in the case of surveillance. When policing a public urinal, the public/private nature of this space & the corporeal practices generating the space are ambivalent. 23 References. M. Pflum

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

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

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

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