Suchergebnisse

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

Considers the nature of the modern academic environment for female scholars who are simultaneously members of an outside profession, drawing on personal experience as a black female, legal scholar. It is shown that a variety of aspects in the academy, eg, the club-like nature of departments & the inability to raise issues of racism, made the university an inhospitable environment. While men mysteriously advanced or received favorable treatment, women on the faculty routinely had a difficult time. Knowledge of this oppressive environment only served to further alienate women by labeling them as difficult or problematic. Eventually, the uncomfortability of the university pushed the author to pursue career interests outside the academy. However, the university still remains attractive, because it is the only site in which extensive research in the field of criminal justice is possible. For this institution to become more hospitable to women, particularly black women, it is concluded that the situation will have to be reformed so as to dismantle the atmosphere that fosters gender & racial hierarchy. 9 References. D. M. Ryfe

Acknowledging that a certain "rule of law" does not necessarily advance freedom, it is contended that the content & administration of law do affect human freedom. It is asserted that freedom is not located in the legislation, constitutional ideology, or common law of a given political system. Using Cicero's aphoristic contention that slavery is necessary for freedom, it is argued that freedom in law is incompatible with absolute freedom; however, freedom is contingent on certain constraining conditions. Consequently, freedom according to the law is embedded in the assertion that law & freedom are capable of being intertwined. Three conclusions from an analysis of the delimitation of law & freedom on an international level are advanced (eg, law is dependent on the prior exercise of freedom). It is concluded that law is most easily located in judicial explanations of legal principles. 20 References. J. W. Parker

Argues that the sociology of law should continue its long-standing focus on law & governmentality, but also should expand its analysis to an examination of the interaction of legal & nonlegal forms of governance. The beginning of such an enterprise is provided by the work of Michel Foucault (1977), raising the question of law's role in modern forms of governmental rationality. It is suggested that Foucault's analysis ought to be revised to attend to the plurality of forms of law & governance, & to focus more explicitly on forms of state power. Using this conception, it is contended that the key link between law & modern power is that law plays the organizational & ideological role of providing temporary moments of unification within dispersed fields of social power. This approach to law & governance is favored over others because it facilitates an account that remains sensitive to variations in modes of governance & local power while remaining attentive to the role of the state in the condensation of power relations. 69 References. D. M. Smith

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

Assesses the efficacy of law enforcement efforts against extremism, particularly on the far Right, & offers suggestions for prosecuting them. The cases of Robert Jay Matthews & James Ellison are analyzed as examples of failed enforcement policies & inefficient prosecution that enhanced the profile & support of extremist organizations like the Aryan Nations Congress. It is argued that intragovernmental cooperation on all levels would eliminate the need to pass new laws punishing terrorists in favor of enforcement of already existing criminal statutes like the Racketeer Influenced & Corrupt Organizations Act. Civil actions by private citizens against terrorists & extremists are also recommended. It is concluded that, with interagency cooperation, disasters like the Branch Davidian incident in Waco, TX, could have been avoided. T. Arnold

Examines the growing threat of international terrorism, calling for a multinational legislative approach. It is argued that the key to such an approach, along with international cooperation in crime prevention & criminal justice, is the adoption of a legal definition of terrorism that can be enforced through domestic legislation. Efforts toward such a definition by the G7 countries plus Russia (P-8), including the 1995 Halifax (Nova Scotia) & Ottawa (Ontario) Summits, the 1996 Sharm el-Sheikh Summit, & International Crime Control Act, are analyzed. The recommendations of the 1996 Lyon & Paris (France) Ministerials for constructive engagement to promote change in certain countries are discussed. It is concluded that until nations beyond the P-8 implement these measures, they will be useless against terrorists increasingly driven by religious fanaticism. T. Arnold

The possibility of eliminating genocide on an international level is explored. Following an overview of international legal treatments of genocide, a definitional matrix for genocidal crimes that provides a legal structure for assessing degrees of guilt is provided. A review of contemporary genocide scholarship illustrates how such research has improved understanding of genocidal violence. The introduction of a world genocide early warning system is supported, focusing on such an organization's conceptual structure & role in preventing genocide. Ten early warning processes that will indicate potential genocidal situations are discussed, eg, determination of whether certain groups are being dehumanized & targeted for genocide. Although some societies are too self-absorbed to prevent future instances of genocidal violence, it is concluded that past instances have induced the international community to seriously address the issue of preventing genocide in the future. 2 Figures, 91 References. J. W. Parker

An exploration of cases in which multicultural accommodation allows the systematic maltreatment of individuals within a particular religious/cultural group argues that the intragroup oppression of women must not be accepted as an unavoidable consequence of tolerating cultural differences in a liberal society. The greater vulnerability of women than men in minority groups is discussed in relation to the demarcating & distributive functions of family law. Two current approaches to family law are described as "secular absolutist" & "religious particularist" models. An assessment of each approach's division of legal authority indicates that neither model provides a satisfactory balance between cultural preservation through family law accommodation & the protection of women's rights. An alternative multicultural approach to family law accommodation is suggested. This "joint-governance" model honors identity preservation while simultaneously seeking to provide women living in nomoi groups with the legal protections guaranteed to all citizens. Instead of forcing women to make a difficult choice, it provides women with the leverage to renegotiate oppressive family law traditions from within their cultural communities. J. Lindroth

The issue of whether interethnic conflict in the former Yugoslavia during the early & mid-1990s is representative of genocidal killing is addressed. A literature review of contemporary genocide research is presented, focusing on Leo Kuper's (1981) study of the connection between war & genocide, Frank Chalk & Kurt Jonassohn's (1990) typology of genocide, Robert Jay Lifton's (1986) tripartite medical metaphor of genocide, & Robert Melson's (1992) study of the Armenian genocide & the Holocaust. The aforementioned models were all present in the former Yugoslavia. It is subsequently claimed that Serb & Croat nationalist leaders utilized aspects of WWII genocide before & during the interethnic conflict. Although the potential for the newly established European democracies to revert to authoritarian regimes remains, it is concluded that the creation of the International Criminal Tribunals for Rwanda & the former Yugoslavia is an important step for addressing genocidal killing. J. W. Parker

A case study of cattle trespass disputes in Shasta County, CA, illustrates circumstances that prompt individuals to reject formal litigation in favor of informal norms. The fieldwork tested economist Ronald Coase's (1981) theorem that disputants depend solely on formal legal rules to ascertain their entitlements, which assumes that changes in liability laws will not affect the allocation of resources when transaction costs are low. In Shasta County, which has varied cattle trespass liability rules, the failure of laws to affect resource allocation was due to high, not low, transaction costs. The physical & social characteristics of the area are described, along with the benefits & costs of fences. In open-range areas, the legal rule that a cattleman is not liable for unintended trespass was superseded by the norm that an owner should supervise his cattle. Discipline is enforced by negative gossip & other reprisals. Different informal methods of resolution are examined, suggesting the need for law & economics scholars to reconsider the impact of transaction costs on the resolution of disputes. 2 Figures. J. Lindroth

The extent to which agents acting on behalf of the state are constrained by internal & external factors is examined. Literature on the influence of various factors on state decision making is reviewed, & constraints that affect state decision making on foreign policy are identified: agent views & inclinations; agent positions in the state structure; state political & legal foundations; & state economic, historical, & geographical position in relation to other states. International diplomatic standards, global law, international morality, different regimes, & global institutions also influence state decision making. Although none of the aforementioned constraints are absolutes, it is concluded that successful foreign policy requires the balancing of freedom & necessity. 34 References. J. W. Parker