From Ideologies, to Institutions, to Punishment: The Importance of Political Ideologies to the Political Economy of Punishment

This chapter argues that institutionalist accounts of punishment, crime, and inequality should look to the thinning of political ideologies and its institutional implications. It explores the claim according to which thin ideologies such as populism, technocracy and plebiscitarianism, have institutional ambitions and tend to incentivise reforms that favour executive discretion and a politics of disintermediation. This claim is illustrated by reference to Italy both during and after the Eurozone crisis. Italy functions as a starting point for a broader discussion of how ideologies might change institutions, and therefore the penal incentives that follow from particular institutional configurations. The chapter argues that institutional changes rooted in thin ideologies may have long-term effects on punishment by incentivising a more adversarial and retaliatory approach to conflict – and thence to crime and deviance – and dis-incentivising a more negotiated and reintegrative approach to conflict, including the type of interpersonal conflict represented by crime and deviance.

Administrative Law Values and National Security Functions

This chapter focuses on the case of extraterritorial military detention by the US and the UK—two countries that quickly deployed and then repeatedly refined their detention policies during the nearly two decades following the terrorist attacks of September 11, 2001. Military detention is arguably one of the quintessential national security functions where deference to executive discretion is strongest. As such, it is an activity that differs markedly from the types of practices that form the core work of many domestic administrative agencies, and administrative law scholarship tends to ignore the national security domain. Yet even here, in a realm seemingly so insulated from administrative law norms, agencies in both the US and the UK have implemented a variety of administrative rules and procedures, as well as non-judicial administrative tribunals to assess the status of detainees. Although the US and the UK followed different pathways, both countries have ultimately come to embrace administrative law frameworks for military detention. And both countries have gradually moved to protect, at least to a limited extent, the core administrative law values of rationality, transparency, participation, and procedural protection even as they have rejected fully judicialized detention processes. This comparative case study therefore illustrates the significance of administrative law values in the area of national security and points toward the need for further scholarship at the intersection of national security law and administrative law.

Normalizing Necessity: From Scrutiny to Exigency

This chapter investigates the concept of the greater the governmental need the better the justification for intruding upon baseline rights and liberties. As an example, it explains that a legislature may have license to pursue a compelling need by means claimed necessary even while deviating from strict protection of a constitutional right. It explains how necessity can enhance or diminish the scope of pre–existing powers of a defined government office, such as granting a president confronting a military emergency with wide discretionary latitude to act with enhanced executive powers without having to claim new ones. The chapter also assesses how channeling executive discretion into a judicial doctrine of “exigency” enhances the scope of government action in relation to a protected right. It focuses on counterterrorism surveillance practices, which argues that the existence of exigency doctrines provides ways to normalize necessity in everyday governing practice.

Woking of Advisory Boards in Maharashtra State: Serving Human Rights of Felons

Rationale behind construction of a “Sentence Review Board” in any State correctional institution in lies behind the progression of law originating from custodial and penal causes, to reformative and rehabilitative handling of lawbreakers wherein well-behaved and upright conduct, and rectified attitude are considered for as a key criterion for reduction of judicial sentence of imprisonment on personalized footing.In consonance of the statutory power granted, and focusing upon the guidelines issued by “Model Prison Manual 2003” through a notificationon December 1, 2015 the Home Department of the Government of Maharashtra formulated the amending rules to “Maharashtra Prisons (Review of Sentences) Rules, 1972” and restructured the “Advisory Boards,Special Advisory Boards and Medical Committees” constituted for the purpose of “pre-mature release” of the certain categorisedconvicts.As the provision for a premature release is “an executive exercise and not a judicial process”, “executive discretion in granting or denying” it raises certain grey areas in the criminal dispensation system in India. The present paper with an analytical and critical approach attempts to study the existing makeup of executive process of “pre-mature release of a felonwhich though is not a legal right, but is a human right to have his case considered for the grant of remission” in State of Maharashtra

Conceptualizing IO Emergency Powers

This chapter introduces a constitutional perspective on international organizations (IOs) that foregrounds the legally constituted relationship between authority-holders and authority-addressees. Distinct from the common principal–agent perspective, it paves the way for understanding IOs’ crisis-induced authority-leaps as an assumption of emergency powers—an act defined as the constitutionally deviant widening of executive discretion at the expense of the political autonomy of the rule-addressees that is justified by exceptional necessity. The chapter taxonomizes the possible institutional embodiments of IO exceptionalism according to its constitution, reach, and intrusiveness and highlights its phenomenological differences with respect to domestic exceptionalism. Given the structural conditions of the international spheres of authority in which IO exceptionalism operates, it is expected to rely on the acquiescence of the most powerful member states, to be stratified in scope and application according to states’ power differentials, and to instrumentalize rather than openly suspend norms of international law.

Making Treaties and Other International Agreements

This chapter examines the foreign relations law of the European Union concerning the making of treaties and other international agreements. It first outlines the sources of EU law on treaty-making and the legal and constitutional context in which EU treaty-making takes place. It then turns to the law relating to the process of treaty negotiation and to the signature, provisional application, and conclusion of treaties, identifying the ways in which the specific legal characteristics of the European Union as a treaty maker are reflected in its foreign relations law. These include the principle of conferred powers, whereby all treaty-making power must be conferred expressly or impliedly by the EU Treaties, and the institutional balance of powers. For the European Union, treaty-making is not a manifestation of sovereignty and cannot be regarded as simply a matter of executive discretion; the policy balance of a projected treaty and its relation to the European Union’s general objectives may be subject to judicial assessment. The member states remain sovereign subjects of international law and, as a matter of EU law, the European Union’s external powers do not necessarily displace those of the member states. As a result, the European Union and member states will often enter into treaties together, although there are no formal rules in the EU system, apart from the general mutual duties of cooperation, governing the negotiation and conclusion of such “mixed agreements.”

Republic of Singapore

Against the jurisdiction with the highest rate of capital clemency from 1991 to 2016 (Thailand), Chapter 4 juxtaposes the jurisdiction with the lowest (Singapore). Here, a mere 0.6 per cent of prisoners who exhausted their judicial appeals received death row commutations between 1991 and 2016. In Singapore’s case, again the chapter opens with a summary of relevant death penalty laws and practice, and a summary of the six cases where a capital prisoner has been granted clemency since Singaporean independence in 1965. The five theoretically informed hypotheses set out to explain the Singapore Cabinet’s overwhelming reluctance to grant capital clemency over many decades are as follows: Singapore’s rule of law ‘brand name’; the government’s public justifications for retaining the mandatory death penalty; strong deterrence in drug-trafficking cases; prosecutorial discretion supplanting executive discretion, and particular aspects of the Cabinet’s decision-making processes.

International authority and the emergency problematique: IO empowerment through crises

This paper applies the concept of emergency powers to the crisis politics of international organizations (IOs). In the recent past, IOs like the UN Security Council, the WHO, and the EU have reacted to large-scale crises by resorting to assertive governance modes bending the limits of their competence and infringing on the rights of the rule-addressees. In contrast to rational and sociological institutionalist notions of mission creep, this paper submits that this practice constitutes ‘authority leaps’ which follow a distinct logic of exceptionalism: the expansion of executive discretion in both the horizontal (lowering of checks and balances) and the vertical (reduction of legal protection of subjects) dimension, justified by reference to political necessity. This ‘IO exceptionalism’, as argued here, represents a class of events which is observable across fundamentally different international institutions and issue areas. It is important not least because emergency politics tend to leave longer-term imprints on a polity’s authority structures. This article shows that the emergency powers of IOs have a tendency to normalize and become permanent features of the institution. Thus IO exceptionalism and its ratcheting up represent a mechanism of abrupt but sustainable authority expansion at the level of IOs.