Search results

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

The paper approaches a topic of high actuality concerning the professionalisation of public management, process that could lead to setting up a corps of civil servants, substantiated on meritocratic criteria, political equidistance. In the context of knowledge-based society, the paper presents the organisational perspective and integrates New Public Management in the practice of the public organizations. The evolution from Weberian bureaucracy to New Public Management creates the matrix as basis for structuring in service training strategies of the civil servants as well as for the transfer of knowledge specified in those strategies. The context of the knowledge-based society provides the possibility to describe a structure of the training strategies adapted to the needs and ideals.

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

Discussion begins with a look at the factors underpinning a shift in the international debate on refugee protection to questioning its legal basis & how this shift has impacted the United Nations High Commissioner for Refugees (UNHCR). Immigration policies restricting unwanted inflows are reviewed before addressing refugee right connections to international human rights law & how the international human rights protection regime might usefully be wedded to the international refugee regime to address gaps. Highlighted are treaties targeting the development of international human rights standards & the human rights mechanisms of the UN. Some attention is then given to international criminal law developments have influenced the idea of individual accountability for serious human rights violations. Reparations & compensation schemes are addressed as other accountability measures to handle human rights violations. The convergence between international human rights law, refugee law, & criminal & humanitarian law is seen as bolstering the international refugee protection regime. J. Zendejas

Contends that Michael Hardt & Antonio Negri's Empire (2000) lacks an adequate accounting of the functioning of international law, focusing on the legal dimensions of the apparently emergent new form of imperialism & the World Bank. To understand Hardt & Negri's notion of Empire, three key characteristics of it, per the authors, are discussed: it is new, is decentered & deterritorialized, & emphasizes totality. In looking at the World Bank's two most recent publications of the World Development Report, difficulties related to the emphasis on deterritorialization & totality are elaborated on & how they depend on & reproduce a static & positivistic conception of law is demonstrated. In addition, an emergent international legal imperialism that Hardt & Negri do not address is exposed. At issue is the disempowering naturalization of the market & the incorrect assertion that nation &, thus, sovereignty are in decline. While World Bank practices appear at first blush to resonate with "empirial" modes of power, such practices actually depend on a kind of modern rather than postmodern sovereignty. Hardt & Negri's unidirectional & positivist conception of the relationship between law, states, & markets, wherein they eschew the potency of the myth of the rule of law, its link to nation, & in turn international law, hides the mechanisms by which the World Bank & other multilateral economic institutions construct the current empirial world order. J. Zendejas

Discusses the nature, implications, & problems facing recent attempts to establish a democratic criminal justice system in Spain. Prior to the death of dictator Francisco Franco in 1975, the penal system was characterized by death penalties & long sentences inflicted on political prisoners. However, the transition toward democracy has led to a number of reforms grounded in the legal tenets of the Spanish constitution: the principles of legality, proportionality of punishment, the rule of law, & commitment to rehabilitation. Despite these admirable goals, imprisonment remains the primary means of criminal retribution, & prisons are currently in a state of crisis due to overcrowding, lack of staff, & skyrocketing levels of drug use & human immunodeficiency virus/acquired immune deficiency syndrome infection. Spain remains an ideal example of the punitive inflation & ideological contradictions evidenced in criminal justice systems throughout the world. However, the growing presence & acceptance of psychology, sociology, & anthropology have facilitated critiques of the current system & encouraged discussion of viable alternatives to imprisonment. 2 Tables, 29 References. T. Sevier

The Clinton administration was an early supporter of a permanent court to try individuals accused of war crimes, crimes against humanity, & genocide. When control over the court's agenda was not assigned to the UN Security Council, the U.S. position changed from support to opposition. Now that the International Criminal Court has been created, it stands as a continuing example of the unilateralism that critics say characterizes US. foreign policy. In light of the broad international support for the court, continuing U.S. opposition to it raises questions about the United States' commitment to the rule of international law.

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

"The second contribution in this part deals with a completely different but highly topical risk. By switching focus from state actors to private actors, Joris Larik searches for ways to curtail the currently largely unfettered power of multinational corporations. With yearly turnovers that sometimes exceed the gross national product of states and corresponding political influence, such corporations not only theoretically can, but in the past repeatedly have, created detrimental effects for states and individuals in their sphere of operations. On the other hand, viable international solutions to subject multinational corporations to international rules and obligations comparable to those applicable to states are missing, except for voluntary partnerships like the UN Global Compact introduced by former UN Secretary-General Kofi Annan or efforts to make human rights obligations applicable to multinational corporations. Larik therefore explores possibilities to extent the applicability of international criminal law to legal persons such as corporations. Instead of interpreting a given treaty, the author shows how often-mentioned theoretical 'stumbling blocks' such as establishing a corporation's criminal intent (mens rea), corporate complicity, and means of punishment for corporations can be overcome. He demonstrates that all three issues are not irresolvable and that international criminal law bears the potential to give remedy to victims not only to crimes committed by states and individuals but also by multinational corporations. Only in extending the scope of international criminal law to multinational corporations, Larik argues, can the former live up to its role not only as a means to punish but also to protect." (extract)

Under the Soviet regime, jurisprudence theory included no reference to the concept of a law-governed state, which would have supported the bourgeois notion that law would control political power. This is not surprising since Marxist-Leninist doctrine viewed law as "the will of the ruling class," serving the interests of those in power. Mikhail Gorbachev's perestroika policy brought the first change to the traditional Soviet concept of law, & the 1990-1991 revolution that toppled Soviet rule furthered the process of change in law & other areas of sociopolitical life. The history of law in the Soviet era & its development since then are recounted. It is concluded that Russia still lacks a rational legal system such as those enjoyed in democratic states, though there has been much improvement. A law-governed state goes hand in hand with a philosophy of public life that fosters freedom rather than paternalism, a philosophy that does not exist under the Putin regime. J. Stanton

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

Contends that Michael Hardt & Antonio Negri's Empire (2000) presents a postmodern form of global sovereignty increasingly separate from the socioeconomic sphere. The text is deemed inadequate for meeting the challenges of contemporary globalized social conflict for its refusal of law as a mechanism of representation. Analysis of the American Revolution, which Hardt & Negri view as a break in the genealogy of modern sovereignty & an example of constituent power, demonstrates how the overlap of state/law & society impelled the Founding Fathers to use law to create a constituent act, which upsets Hardt & Negri's strict separation of constituent & constituted power. British Americans are shown to employ a narrative of ancestry to create a rights-justifying identity. In addition, in scrutinizing the Declaration of Independence, how claiming legal rights produces a corresponding form of subjectivity is illustrated; the constant invocation of rights & legal principles evoked the identity of the American nation. Attention turns to articulating the boundaries that identify the American people & the exclusions rendered by those boundaries. In addition, some issue is taken with Hardt & Negri's rendering of the multitude, arguing that their legal invocation of it, while generating the possibility of a political subject, necessarily renders impossible the total inclusivity they claim on its behalf; ie, either the ontological multitude exists immanently, with inclusivity, & without political subjectivity, or it has such subjectivity but accompanied by difference. The implications of this for revolution are contemplated. It is concluded that Hardt & Negri's notion of the distinct separation of state (ie, law) & society as the passage to postmodernity overlooks the mutual overlap of state & society & mutually constitutive law-society relationship. J. Zendejas

The 2000 decennial US Census was the first to allow respondents to select more than one category to designate their racial identification. Here, some legal implications of this new multiracial format are explored, focusing on three types of potential cases stemming from civil rights law: those involving (1) discriminatory impact suits brought by individuals; (2) compliance with goals or timetables for achieving racial composition requirements (eg, affirmative action & school desegregation); & (3) legislative redistricting under the 1973 Voting Rights Act. Constitutional & other legal problems posed by the new aggregation rules for categorizing the multiracial population proposed by the Office of Management & Budget are also examined. Though short-term legal effects are likely to be minor, it is anticipated that, in the long term, the new multiracial data & methods for its aggregation will become increasingly problematic in the legal arena. 7 References. K. Hyatt Stewart

The author provides an analysis of the United State's unilateral & hegemonic approach to foreign policy regarding Iraq in the context of the challenges it poses to the multilateral legal order constructed over the past decades. Despite the US invasion of Iraq, the author offers reasons why multilateralism may yet survive. D. Miller