Kant and the Criminal Law of War

2021 ◽  
pp. 171-185
Author(s):  
Malcolm Thorburn

The chapter focuses on Ripstein’s account of a doctrine that has caused a great deal of trouble to moral philosophers of law over the years: the equal criminal immunity of combatants. Thorburn sets out the contours of the Kantian approach to the morality of law, which begins with the relationship of public authority and only later proceeds to the evaluation of how that authority has been exercised. He then considers Ripstein’s application of that approach to the legal equality of combatants in war. Although Ripstein’s account suggests a comprehensive justification of the doctrine of equal criminal immunity, Thorburn shows that Ripstein’s chapter does not spell this out fully, though he outlines a way in which Ripstein can do so.

Author(s):  
Stacy Moreland

This article asks the question: how do judges know what rape is and what it is not? The statutory definition contained in the Criminal Law (Sexual Offences and Related Matters) Amendment Act1 (SORMA) guides courts in adjudicating rape cases, and as such the definition is theirs to interpret and implement. This article analyses a small selection of recent judgements of the Western Cape High Court2 (WCHC) for answers. The article begins by establishing why judgements are an important source for understanding what rape means in society at large; it then discusses the relationship between power, language, and the law. This is followed by specific analyses of cases that show how patriarchy still defines how judges express themselves about rape. It concludes by looking at the institutional factors that discourage judges from adopting new ways of talking about rape, and their constitutional mandate to do so.


2020 ◽  
pp. 466-491
Author(s):  
Paul Noordhof

Just as laws are variably realized so are objective chances: in the patterns identified by the best system analysis and in propensities. Theories of chance face two significant problems: the problem of undermining that is alleged to afflict Humean accounts of chance and, second, the relationship of chance to frequencies and, thus, to successful action. Although some propensity accounts can avoid undermining, they do so at the expense of the second relationship. More concessive propensity theories make some headway with regard to the second problem but start to suffer from the first problem. The perceived advantage for agents in conforming their beliefs to chances, understood as propensities, is rooted in the same mistake about induction identified in Chapter 14. So the successful treatment of chance does not tell in favour of one theory of the laws that support them than another.


Author(s):  
Elizabeth Macdonald ◽  
Ruth Atkins ◽  
Jens Krebs

This chapter looks at the effect of duress or undue influence on the making of a contract. The difficulty is identified of distinguishing hard bargaining from economic duress, when the ‘threat’ is to the economic interest of the party ‘threatened’. This raises the question of what amounts to an illegitimate threat; whether a threat which is not otherwise legally labelled as wrongful will suffice, and whether all threatened breaches of contract do so. The question also arises as to a test of a ‘reasonable’, or ‘practical’, alternative to agreeing. Undue influence is concerned with the surrender of decision making because of the relationship of the parties whether through domination or trust. The presumptions that arise in relation to undue influence, and when they arise, are examined. Consideration is given to the treatment of aggressive and misleading trade practices under the Consumer Protection from Unfair Trading Regulations (as amended by the Consumer Protection (Amendment) Regulations 2014).


2019 ◽  
Vol 30 (4) ◽  
pp. 1399-1408 ◽  
Author(s):  
Bernard Hoekman ◽  
Douglas Nelson

Abstract How should we think about the winners and losers from globalization? What role can narrative analysis play in doing so? We argue that to be useful, identifying politically relevant narratives on the distributional effects of globalization, and the role played by trade agreements in fostering such effects, must have an empirical basis. Characterizing different narratives and inferring from each the implications for the (re-)design of international agreements without analysis whether the suggested policy reforms will help losers from globalization does not advance matters. Effectively employed, narrative analysis can extend our knowledge of the politics of trade and policy towards globalization more generally. To do so, it must have an analytical foundation, centre on the relationship of the narrative to the facts, ask which narrative is more persuasive based on empirical evidence and assess whether inferred policy implications will address the core issues of concern to those who employ the narrative.


Author(s):  
Clovis Demarchi ◽  
Tainá Fernanda Pedrini

The State and the Business Activity have a relationship of Interdependence. That holds the punitive and regulatory power, this, the economic. The achievement of the global Sustainability goal implies harmony between the actors for joint policies. In view of this, it aims to demonstrate the participation of the business sector to achieve this objective, through socio-environmental management - with the organization or business financially viable, fair to the Company and endowed with environmental responsibility. To do so, the relationship between the human being and the environment is first analyzed in order to identify the consequences of human performance over time. Subsequently, the application of Sustainability as a concept to the application of management policies for the business sector is studied, considering the awareness developed about the existence of a Risk Society, as well as, the possibility of benefits arising from this management model. The method used was inductive.


1967 ◽  
Vol 2 (2) ◽  
pp. 232-269 ◽  
Author(s):  
S. Z. Feller

Any scientific discipline worthy of the name is successful in eliciting the essential nature of the area with which it is concerned and in identifying its basic categories and determining the rules applicable to the inter-relationship of these categories. On these conditions alone can scientific inquiry fulfil its major, perhaps only, task of solving the practical problems that arise in the particular area of study. In every science, therefore, a central place is assigned to an examination of its specific categories.Jurisprudence establishes general juridical categories that prevail in every branch of law. Yet each branch of law, including the criminal law, has laid down and delimited its own particular categories and continues to do so. From time to time social phenomena appear which do not lend themselves to the classificatory grouping of the current jurisprudential theory. In such cases, the scholar must extract the basic constituents of these phenomena, trace their specific consequences, determine their special nature and dovetail them into the classificatory system of the relevant branch of the law. From this process also derives the practical interest of the scholar in facilitating the smooth articulation of the actual phenomena with the previously prescribed categories and relating to them the legal effects specific to the category under which they fall to be grouped.


Author(s):  
G. Edward White

This chapter discusses the emergence of “modern,” “total” war in late nineteenth- and twentieth-century America, and the relationship of modern war to traditional doctrines of the “law of war,” such as the treatment of “enemies,” “belligerents” and “nonbelligerents,” and prisoners of war, as well as the relationship of courts to the military in wartime.


2010 ◽  
Vol 28 (2) ◽  
pp. 200-217
Author(s):  
Rachel Duerden

Mark Morris's L'Allegro, Il Penseroso ed Il Moderato (1988), embodies ideas about how to live a good life. L'Allegro is unusual in that it is a full evening-length work, yet has no through-narrative; it has characters and action, but these change in each of the many individual sections. However, together these embody a dialogue – really a three (or four or even five)-way discussion between poet, composer and choreographer about the best way to live. The relationship between dance, music and text, and the implied conversation across the centuries between Milton, Handel, Jennens and Morris, offer insights into the way such layering of creativity can illuminate our engagement with art. As in so much of Mark Morris's work, the relationship of choreography and music is of paramount importance, and this will form the main focus of the discussion here. Handel's secular oratorio of 1740 is itself a setting of John Milton's companion poems, L'Allegro and Il Penseroso (1631), which explicitly explore through debate the relative merits of different approaches to life. Handel's musical setting includes an additional ‘voice’ in the debate: Il Moderato, words by Handel's librettist Charles Jennens, offering a ‘middle way’, or ‘18th century balance’, as John Eliot Gardiner has it (1980:16). 1 For the purposes of this essay I focus chiefly on the dialogue between dance and music as manifest in a few ‘moments’, with reference also at times to the poetry and its rhythms. In this, I am guided by theories of art as embodiment as expounded by Paul Crowther. When we engage with art, we do so in the fullest sense of perceptual, that is, with our whole, embodied selves. Art, as the embodiment of ideas, does not teach us anything specific about the artist or his/her world, but it does reveal something of the world-view of the artist as an embodied being. There is thus the potential for empathy, and imaginative engagement; we are not passive consumers but active reciprocal participants. Through close reading of a few short examples drawn from the work, I employ structural analysis to examine music-dance relationships, referring also from time to time to the poetry, which itself reflects key characteristics of both choreography and music. These examples show how dance, music and poetry manifest characteristics that are suggestive of similar perspectives on life, both individually and in relationship with one another. John Creaser, writing of Milton's poems, observes that they embody a sophisticated and resilient playfulness conveyed through verbal nuance and rhythmic buoyancy, a revelation of temperament and sensibility rather than an exploration of ideals. (Creaser 2001:377)


Author(s):  
Eyal Regev

This concluding chapter discusses two general issues that build on the previous chapters, namely, the relationship of the early Christians to Judaism and the implications of comprehending the Jerusalem Temple in the first century. Early Christian authors draw heavily on the Temple as a major Jewish institution as well as on the concepts of the Temple and the sacrificial cult. They do so while minimally discrediting the legitimacy of the Jerusalem Temple and the sacrifices, even as they propose alternatives after its destruction. Whether referring to the Temple in the standard manner or a radical one, these authors are undoubtedly aware that they are sharing this key symbol with non-Christian Jews, and this seems to be one of their hidden messages: that they share the same holy center devoted to the one and only God despite their differences and persecution by fellow Jews.


2017 ◽  
Vol 9 (1) ◽  
pp. 3-10 ◽  
Author(s):  
Kristel Beyens

The use of electronic monitoring (EM) has grown rapidly in Europe and elsewhere and is likely to continue to do so. EM is a technological tool that allows to monitor the location of individuals via an electronic ankle tag, to track the movements of individuals either in real time or retrospectively. This special issue of the European Journal of Probation focuses on the relationship of EM with supervision in four jurisdictions (Belgium, Germany, The Netherlands and Scotland) and the question whether EM is mainly used as a stand-alone order or as an integrated measure; that is, alongside other supervisory conditions. It also contains a contribution with an initial round up of Australian experiences with EM.


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