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Using International Criminal Law to Resist Transitional Justice

Legal Rupture in the Extraordinary Chambers in the Courts of Cambodia

Mikael Baaz and Mona Lilja

An increasing body of literature focuses on negotiations of transitional justice, but not much has been written so far regarding contestations over its practices and the refusal of states and individuals to participate. Given the remaining legalistic dominance, this is particularly true regarding the field of international criminal law. Very little, if any, work in international criminal law engages with the topic of “resistance.” Departing from this gap in research, focusing on Cambodia and the Extraordinary Chambers in the Courts of Cambodia (ECCC), the objective of this article is to introduce, discuss, and analyze the “strategy of rupture”—as developed by the late French lawyer Jacques Vergès—and the ways in which this legal defense has been applied in practice at the ECCC in order to resist not only the Tribunal per se, but also the entire Cambodian transitional justice process and, by extension, the post–Cold War global liberal project.

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The Complexity of History

Russia and Steven Pinker’s Thesis

Nancy Shields Kollmann

This article finds Steven Pinker’s argument for a decline of violence too Eurocentric and generalizing to fit all cases. Study of the early modern Russian criminal law, and society in general, shows that different states can develop radically different approaches to violence when influenced by some of the same factors (in this case Enlightenment values). The centralized Muscovite autocracy in many ways relied less on official violence and exerted better control over social violence than did early modern Europe, while at the same time it supported violence in institutions such as serfdom, exile, and aspects of imperial governance. Violence in the form of capital punishment declined but many aspects of social and official violence endured. Such a differentiated approach is explained by the state’s need to mobilize scarce human and material resources to survive and expand.

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The return of Pierre Proudhon

Property rights, crime, and the rules of law

Esther Kingston-Mann

This essay in comparative history considers how governing elites and rural publics have interpreted rules of law and criminal behavior in times of radical tenure transformation. During the twentieth century, Russians experienced three state-sponsored attempts at property rights revolution: firstly, the pre-1917 Stolypin Reforms to privatize the ubiquitous peasant communes, secondly, Stalin’s 1930s campaign to forcibly collectivized peasant communes, and thirdly, the 1990s ‘shock therapy’ reforms to replace Soviet collectivism with wholesale privatization. In each case, adherents of the pre-existing property systems were excluded from the decision-making process that established the new one. Russia’s historical experience is viewed in light of the contested emergence of private property regimes during England’s enclosure movement, and during the nineteenth-century Euro- pean settler appropriation of American Indian land as private property—with African-born plantation workers also later claimed as private property. In some cases, resistance was viewed as criminal; in others, it was punishable as treason.

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Separating Church and State

The Atlantic Divide

James Q. Whitman

Americans commonly believe that their country is unique in its commitment to the separation of church and state. Yet by the European measure, the American separation of church and state looks strikingly weak, since Americans permit religious rhetoric to permeate their politics and even cite the Bible in court. In light of these striking differences, this article argues that it is wrong to imagine that there is some single correct measure of the separation of church and state. Instead, northern continental Europe and the United States have evolved two different patterns, whose historical roots reach back into the Middle Ages. In northern continental Europe, unlike the United States, historic church functions have been absorbed by the state. The consequences of this historic divergence extend beyond familiar questions of the freedom of religious expression, touching on matters as diverse as welfare policy and criminal law.

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Humanity’s Subtensions

Culture Theory in US Death Penalty Mitigation

Jesse Cheng

Criminal law in the United States values conceptual definitiveness in its quest for resolution. But the work of open-ended humanization required of sentencing mitigation advocates in American death penalty cases defies this call for definitiveness. Even as formal legal processes seek to limit the knowledge that can be brought into the courtroom, new theoretical approaches that justify more understanding and fact-finding can help attain tangible goals of defense advocacy. This article provides an ethnographic account of how capital defense practitioners in the United States engage with anthropological theories of culture as a behind-the-scenes advocacy strategy that succeeds by exploiting the anti-definitiveness inherent in culture. I develop the concept of ‘subtension’ as an analytical trope to help elucidate these processes.