Showing papers in "New Criminal Law Review in 2007"

Endless Emergency: The Case of Egypt

Abstract: The Arab Republic of Egypt has been in a declared state of emergency since 1981 and for all but three of the past fifty years. Emergency powers, military courts, and other "exceptional" powers are governed by longstanding statutes in Egypt and authorized by the constitution, and their use is a prominent feature of everyday rule there today. This essay presents Egypt as a case study in what is essentially permanent governance by emergency rule and other exceptional measures. It summarizes the history and framework of emergency rule in Egypt, discusses the apparent purposes and consequences of that rule, mentions judicial limitations on it, and notes the many targets of its exercise over the years, particularly the government9s two most prominent and persistent groups of opponents: Islamists and liberal political activists. It also explains how the country9s March 2007 constitutional amendments, much decried by humanrights organizations inside and outside Egypt, further entrench emergency rule there. The thesis of the essay is that the existence and exercise of emergency powers have been far from exceptional in Egypt; instead they have been a vehicle for the creation of the modern Egyptian state and a tool for the consolidation and maintenance of political power by the government.

The American Model Penal Code: A Brief Overview

Abstract: If there can be said to be an "American criminal code," the Model Penal Code is it Nonetheless, there remains an enormous diversity among the fifty-two American penal codes, including some that have never adopted a modern code format or structure Yet, even within the minority of states without a modern code, the Model Penal Code has great influence, as courts regularly rely upon it to fashion the law that the state9s criminal code fails to provide In this essay we provide a brief introduction to this historic document, its origins, and its content

From Martial Law to the War on Terror

Abstract: This article explores the transformation of martial law into emergency powers. In so doing it presents an argument about the liberalization of martial law and the constitutionalization of emergency powers. In showing the ways in which the powers of martial rule have become normalized within liberal democracies the article points to an ideological circuit between emergency powers and the logic of security, a circuit most apparent in the current "war on terror."

Self-Defense, Imminence, and the Battered Woman

Abstract: A traditional element of self-defense doctrine is the imminence rule, restricting the use of force in self-defense to cases where the threatened harm is imminent, about to happen. In recent years, this rule has been subject to increasing criticism, especially in the context of cases involving battered women, and some commentators have even called for its elimination. This essay presents the case for the imminence rule as reflecting the requirement that in a civil society, the use of force be reserved to the state, with only one exception. This exception applies to cases where an individual is faced with an imminent threat. In such circumstances, the state would not be able to intervene in time to protect the person, and hence the individual is permitted to use force in her own defense.

Justice and Terrorism

Abstract: This article is concerned with the ways in which we might understand the relationship between two obligations of the state: retributive justice and security. It develops this analysis in the context of terrorism law in the UK, focusing both on control orders and on the range of criminal offenses that are available for the prosecution, conviction, and punishment of suspected terrorists. The ambition of the article is to outline a normative framework that might be useful in evaluating these different responses, as well as providing critique of particular provisions and policies.

The Moral Limits of Criminalizing Remote Harms

Abstract: I draw on accessorial liability jurisprudence in an attempt to outline the moral limits of criminalizing people for merely influencing the criminal choices of others. A person9s conduct is a "remote harm" when it is harmless "but for" the fact that it encourages another independent party to commit a harmful criminal act (a primary harm). For example, the "broken windows" thesis holds that minor incivilities (such as passive begging) are a precursor to more serious crime. Passive begging allegedly sends a signal to criminals that the broken windows area is unpoliced and is an easy target for crime. The beggars are criminalized to deter independent parties from committing crimes in the broken windows area. In this paper, I object to this kind of criminalization because it contravenes the requirements of fairness and individual responsibility, because it aims to punish people for the inadvertent consequences of their actions. I argue that a person should only be held responsible for another9s criminal harm when she is normatively involved in it. What is needed are normative reasons for stating from an ex ante perspective that it will be fair to hold X morally responsible for S when it causes Y to do harm N. If this requirement is satisfied then there will be a prima facie case for criminalization. I argue that a person is normatively involved in another9s crime when she knowingly assists or intentionally encourages that crime. In addition, a person can become normatively involved in another9s criminal harm by underwriting it. I also assert that the fairness constraint should only be overridden as a matter of necessity to prevent harm of an extraordinarily grave kind and that the broken windows harm does not satisfy this requirement.

Hijacked Airplanes : May They Be Shot Down?

Abstract: The article examines whether force against a hijacked airplane is permissible if uninvolved passengers are killed. It takes a recent ruling by the German Federal Constitutional Court as its starting point, but addresses the relevant issues on a more general level with arguments drawn from moral philosophy, criminal law theory and constitutional theory, and political philosophy. The author concludes that a private individual who applies deadly force against the plane would commit a criminal wrong but should be excused. If, however, state officials act to protect the lives of other citizens, protective rights stand against defensive rights. Because such conflicts cannot be resolved within a discourse about rights, it is legitimate to save the greater number of persons.

Deterrence and Crime Results

Abstract: This article offers a comprehensive study of the merits of the legal practice of punishing accomplished crimes more severely than attempted crimes all other things being equal (differential punishment)vis-aa-vis the alternative of punishing them with equal sanctions (equal punishment).Unlike the overwhelming majority of the literature on the issue--which focuses on which practice better mirrors the offenders9 relative moral deserts--the article evaluates both practices from a consequentialist, deterrence-based point of view. In particular, it shows first that traditional economic theories of the criminal law should yield the conclusion that differential punishment is not superior to equal punishment.The few arguments that the economic literature offers against such conclusion, the article shows, are mistaken. Secondly, drawing on social and psychological findings, the article advances three new arguments showing that, under some likely social and psychological conditions, differential punishment is in fact a superior alternative to equal punishment.

The Place of Translation in Jerusalem's Criminal Trial Court

Abstract: The court-appointed translator is largely an invisible actor in the legal space. The Israeli context provides an extreme example of this invisibility: apart from a general statutory definition of the court9s obligation to translate criminal proceedings, the work of translation in the Israeli courtroom is mostly unregulated by state law, rendering it highly susceptible to informal manifestations. This article offers a critical empirical investigation into the micropractices of translation performed in the Jerusalem criminal trial court in 2002. On the face of things, the court-appointed translator performs a technical task in the everyday working of the court. Expected to mediate between the defense, the prosecution, and the judiciary, the translator is usually not perceived as an active participant in the legal procedure. Problematizing this perception, the article examines the multiple tasks of court-appointed translators in the Jerusalem criminal trial court, thereby challenging traditional court roles and legal perceptions. Not exactly court officials yet also not outsiders to the courtroom, the translators exercise a mixed bag of formal and substantive roles. They act not only as linguistic intermediaries, but also as intermediaries between formal legalities and commonsense discourses. The article is divided into three parts. The first part sketches three primary linguistic challenges, as those are identified by the translators interviewed for this study. The second part of the article adds the perspective of other court practitioners so as to depict a dynamic picture of the particular loyalties of the translators. Finally, the third part of the article examines the liminal, "third space," of translation. Precisely for its extreme articulation of sovereign ideologies, the Israeli/Palestinian setting provides an intriguing geohistorical context within which to think about translation. This last part ties the article together by highlighting the dynamic relationship between language, law, and space, as these are constructed and subverted through practices of translation within the particular setting of the Jerusalem courtroom.

Sentencing and Consequences: A Divergence between Blameworthiness and Liability to Punishment

Abstract: A defendant who attempts a crime may have a similar moral status to a defendant who completes the same crime. This paper seeks to show that there are nonmoral differences between such defendants that may be relevant to sentencing, notwithstanding the primary role of (moral) proportionality in determining relative sentences. A particularly significant nonmoral difference is seen in the effects experienced by defendants depending on whether their criminal acts succeed or fail. It will be argued that for murder/attempted murder, the disparity in likely effects could be regarded as significant enough to require wholly different sentencing considerations for the respective offenses.

The Trial of the Expert: ÉÉpreuve and Preuve

Abstract: This article explores the complex relationship between law and (scientific) expertise. The author first discusses the difference between scientific knowledge and scientific expertise, tracing the historical roots of the concept of proof in a legal rather than a mathematical context. Second, the historical roots of the fair trial are discussed in terms of the premodern eepreuve and the modern preuve, demonstrating the relationship with coordinate and subordinate types of justice. Third, Foucault9s analysis of eepreuve, enqueete, and exameen is extended to clarify how preuve and eepreuve have been integrated into the fair trial, which is explained in relation to the formal and the substantive notions of the "Rechtsstaat." This analysis finally allows the author to discuss the difference between two approaches of scientific expertise in court: one claiming that judges should defer to science and another claiming that a court of law is one of the spaces in which such expertise can be contested. The article concludes that the integration of subordinate and coordinate justice exemplified in the fair trial, opens new perspectives for the testing of scientific expertise, taking into account whose interests are at stake.

Killing in Good Conscience: What's Wrong with Sunstein and Vermeule's Lesser Evil Argument for Capital Punishment and Other Human Rights Violations?

Abstract: In a recent article, Cass Sunstein and Adrian Vermeule argue that capital punishment is morally required if it will deter more killings than it inflicts. They claim that the state9s duty is to minimize the incidence of murder, and that recent deterrence research shows that state executions, even if deemed murders themselves, can do so. If these findings are true, they argue, the state is morally obligated to undertake such "life-life tradeoffs." The logic of Sunstein and Vermeule9s argument justifies not only state executions, but any state-perpetrated injustice that promises to reduce the incidence of similar injustices overall, as the authors acknowledge in a comment about torture. Recently such lesser evil arguments have indeed been invoked to justify state torture, detention without trial, and other human rights violations. In this essay, I identify problems that are common to all of these arguments, as illustrated by the well-developed example Sunstein and Vermeule have provided. My aim is to demonstrate that, however valid the lesser evil approach may be in some domains, it fails when invoked to defend state violations of the right to life and other fundamental human rights.

The Experience of Lawlessness

Abstract: The concept of anomie, as originally developed by Emile Durkheim more than one hundred years ago, connotes a state of lawlessness. What happens in this state is of continued and increased concern, for example, if a government collapses, as in the case of Nazi Germany, or as a consequence of natural disasters, such as hurricane Katrina. Detached evaluation of recent events is impaired because it requires some lapse of time. The essence of lawlessness also prevents resort to traditional legal sources. Thus one is confined to empirical evidence and whatever norms can be derived from them. Essentially, unwritten law emerges in groups of people and in neighborhoods under circumstances of extreme emergencies and in the absence of any organized communal or state power. The evidence from the collapse of Nazi Germany in 1945 and taken from the cities of Frankfurt and Berlin indicates a spirit of excitement and raw energy, in other words, an upsurge of vitality that facilitates improvisation under conditions of severe threat to survival. Standards of morality and legal behavior are temporarily suspended in the interest of coping with immediate emergencies. Yet the more serious the state of anomie, the more reactive forces come into play that ultimately gravitate toward reestablishing traditional legal controls. The evaluation is rendered difficult because standards of analysis shift. What seemed to be plausible under circumstances of threat to life and health may appear at a later time to be questionable if not offensive. Throughout these processes traditional criminal law leads a shadowy existence in the minds of people who continue to adhere to core values regardless of the fate of government.

Normative Gaps in the Criminal Law: A Reasons Theory of Wrongdoing

Abstract: In this article it is argued that in two controversial homicide cases——severing conjoined twins and downing a hijacked commercial plane headed toward a heavily populated area——it is permissible to kill innocent human beings without having to establish the existence of a claim of justification such as selfdefense or choice of evils. Even though criminal law scholars consider that unjustified conduct is always wrongful, the position defended in the article is that there is a normative gap between an absence of justification and a finding of wrongdoing. This "normative gap defense," which negates wrongdoing without justifying the conduct, is the best way to deal with the troubling homicide cases described above. The normative gap defense is grounded on what is called a "reasons" theory of wrongdoing. According to this theory, the state cannot legitimately prohibit conduct when, in light of the fact that there are powerful utilitarian reasons in favor of performing the act and commanding deontological reasons against performing it, we are in a state of equipoise in which it is impossible for us to determine which course of action is "the right thing to do" (i.e., justified). Under these circumstances, the conduct should be regarded as non——wrongful even though it is unjustified.

Torture, Terror, and the Inversion of Moral Principle

Abstract: Extremists on either side of the War on Terror increasingly argue that torture and the deliberate killing of noncombatants are not merely morally permitted but frequently morally required. Both factions have found unlikely allies in leading scholars whose recent work provides intellectual support for the proposed upheaval of moral thought. This article provides new interpretations of the doctrines of double effect and noncombatant immunity which escape traditional criticisms, withstand contemporary challenges, and provide moral bases for rejecting torture and terrorism with equal force. The article also shows that refusal to torture does not make one complicit in the acts one could have thereby prevented, that deontological constraints retain their conceptual coherence and moral relevance when applied to states, and that threshold deontology does not support institutionalized torture.