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The Emergence of Sinister Interest

Philip Schofield

in Utility and Democracy: The Political Thought of Jeremy Bentham

From 1790 Bentham devoted much of his time and energy to his panopticon prison scheme. When the scheme was effectively rejected by the British government in 1803, he turned his attention to the ... More

From 1790 Bentham devoted much of his time and energy to his panopticon prison scheme. When the scheme was effectively rejected by the British government in 1803, he turned his attention to the reform of judicial procedure and the law of evidence. By the summer of 1804 he had worked out in detail the way in which sinister interest operated in this context. A right and proper interest constituted a motive to promote the greatest happiness of the greatest number, whereas a sinister interest constituted a motive to promote the happiness of a particular individual or group. A partnership had been established between judges and lawyers to make the law complex, and thereby extract as much money in the form of fees as possible from clients. By early 1809 Bentham had come to realize that it was not just the legal profession which was characterized by sinister interest, but the political establishment as well.Less

Procedure

Mohamed Shahabuddeen

in International Criminal Justice at the Yugoslav Tribunal: A Judge's Recollection

This chapter discusses the procedures of the International Criminal Tribunal for the former Yugoslavia (ICTY), covering indictment, evidence, fairness, and procedural issues before the Appeals ... More

This chapter discusses the procedures of the International Criminal Tribunal for the former Yugoslavia (ICTY), covering indictment, evidence, fairness, and procedural issues before the Appeals Chamber.Less

Justice in Crisis: Comparative Dimensions of Civil Procedure

Adrian A. S. Zuckerman

in Civil Justice in Crisis: Comparative Perspectives of Civil Procedure

All systems of procedure seek to do justice. Different systems of procedure employ different methods for achieving this goal. Whether the differences between systems are small or great, a comparison ... More

All systems of procedure seek to do justice. Different systems of procedure employ different methods for achieving this goal. Whether the differences between systems are small or great, a comparison is inevitably called for. We look at each other in order to measure ourselves. But like any other form of assessment, this too requires some parameters, some common denominator by which we can measure and compare. This chapter develops such a set of parameters. It argues that justice has three dimensions by which it is measured. Unfortunately, these three dimensions are not entirely complementary. At times they pull in different directions and call for compromises. Compromise, therefore, is an inescapable feature of any system of justice. Once this conceptual framework has been set out, the chapter turns to individual procedures. The purpose of the analysis is to draw attention to how different systems of procedure seek to achieve the goals of justice and what compromises or sacrifices are made in the attempt to do so. This last point is perhaps the most instructive aspect of a comparison of systems, for it draws attention to the fact that what lies behind different methods of doing justice is really a difference in priorities. It is the priority given to this or that objective of justice which shapes the procedures with which we end up.Less

The Language of Justice in Northern Iberia Before AD 1000

Wendy Davies

in Power and Place in Europe in the Early Middle Ages

This chapter represents an examination of the nature of the records that describe judicial court procedure in northern Iberia in the 9th and 10th centuries. It reveals that most records do not derive ... More

This chapter represents an examination of the nature of the records that describe judicial court procedure in northern Iberia in the 9th and 10th centuries. It reveals that most records do not derive from court proceedings but from subsequent construction, sometimes for very partial reasons. This allows us a better understanding of process on the ground and some perception of the power relations that derive from controlling the record.Less

Hostages in the Middle Ages: Problems and Perspectives

Adam J. Kosto

in Hostages in the Middle Ages

This chapter begins with a brief history of hostageship, from biblical times to the present day. It then discusses the ways in which hostageship has been treated by earlier historiography: as a form ... More

This chapter begins with a brief history of hostageship, from biblical times to the present day. It then discusses the ways in which hostageship has been treated by earlier historiography: as a form of surety or an aspect of international law by legal historians, and as a variety of captivity or imprisonment by social historians. It defines the medieval hostage as a third-party guarantor of an agreement, notionally given rather than taken, and actually or potentially subject to loss of liberty, distinguishing it from captives and other forms of non-custodial guarantors. It then addresses the challenges of locating hostages in the sources, outlining a conservative approach, but maintaining that the hostage was for the authors of medieval texts a distinct category. The chapter closes with an outline of the rest of the book.Less

Judicial Education and International Courts: A Proposal Whose Time has Come?

SI Strong

in Identity and Diversity on the International Bench: Who is the Judge?

Although conventional wisdom suggests that the best way to ensure judicial competence is through appropriate selection processes, recent research suggests that no selection method can ensure the ... More

Although conventional wisdom suggests that the best way to ensure judicial competence is through appropriate selection processes, recent research suggests that no selection method can ensure the long-term fitness of the judiciary. Instead, judicial education programs are necessary to provide judges with the multiple skills that constitute ‘judgecraft’. Unfortunately, judicial education at the international level is both rare and relatively unsophisticated, as compared to many domestic forms of judicial education. This chapter is the first to analyse judicial education of international judges. The discussion considers the various practical and theoretical problems associated with international judicial education and offers a number of suggestions regarding further academic inquiries and reform initiatives. In particular, the text considers whether self-regulation in this particular field is appropriate and whether any alternatives exist. In so doing, this chapter seeks to increase the real and perceived legitimacy of international adjudication.Less

What Constitutes Competing Proceedings?

YUVAL SHANY

in The Competing Jurisdictions of International Courts and Tribunals

This chapter begins with a description of the term ‘jurisdictional competition’ (or overlap), which means that a certain dispute can be addressed by more than one available forum. It then discusses ... More

This chapter begins with a description of the term ‘jurisdictional competition’ (or overlap), which means that a certain dispute can be addressed by more than one available forum. It then discusses traditional jurisdictional-regulating rules and the conditions for the application of traditional rules.Less

“Only in Default of Whites”: Slave Testimony and Court Procedure

Sophie White

in Voices of the Enslaved: Love, Labor, and Longing in French Louisiana

This chapter offers a grand tour of French court procedures as applied to the enslaved in French Louisiana, in order to frame the analysis of slave testimony. Using particular court cases to flesh ... More

This chapter offers a grand tour of French court procedures as applied to the enslaved in French Louisiana, in order to frame the analysis of slave testimony. Using particular court cases to flesh out the application of the law in the colony, it discusses the role of slave codes against the backdrop of French colonial laws and judicial procedure, which dictated in minute detail how crimes were investigated, prosecuted, sentenced, and, especially, how testimony was heard, transcribed, and recorded in the archive.Less

: Moderate and Juridical Government: The Spirit of Constitutional Liberty

in The Cloaking of Power: Montesquieu, Blackstone, and the Rise of Judicial Activism

This chapter descries the promotion of judicial power point to a complex constitutionalism that raises civil law in relation to political law as an effort by Montesquieu to redefine honor and natural ... More

This chapter descries the promotion of judicial power point to a complex constitutionalism that raises civil law in relation to political law as an effort by Montesquieu to redefine honor and natural right in The Spirit of the Laws. In it he traces the essential moderation of monarchy to the complexity of its laws and judicial procedures, known in Anglo-American law as due process, or civil and criminal procedure. Although Montesquieu's is the most potent judicial power advocated in liberal political philosophy to that point, both in presentation and substance it adheres to the notion that stealth can enhance power. Thus, he tends to put into circulation the coin of a universal commerce in the rules and formalities of judging, toward the end of achieving humane, moderate government.Less

Introduction

Daniela Berti and Devika Bordia

in Regimes of Legality: Ethnography of Criminal Cases in South Asia

This introductory chapter begins with presenting the main topic of the book which is to propose ethnography of the judicial practices in South Asia. By drawing on previous studies as well as on the ... More

This introductory chapter begins with presenting the main topic of the book which is to propose ethnography of the judicial practices in South Asia. By drawing on previous studies as well as on the contributions included in the volume it then discusses the importance of taking into account trial interactions, how official documents are produced during the trial and also how social dynamics may have an impact on the judicial process. The introduction contextualizes the contributions in terms of the activism, discourses and relationships around criminal cases that shape how ideas circulate in the public sphere and how mediation and negotiation between different actors characterize police and court practices.Less

The International Criminal Court: Struggling to Find its Way

William Schabas

in Realizing Utopia: The Future of International Law

In spite of the initial success in the establishment of the International Criminal Court, the Court is facing difficulties in becoming operational and effective. Many procedural defects stand out. In ... More

In spite of the initial success in the establishment of the International Criminal Court, the Court is facing difficulties in becoming operational and effective. Many procedural defects stand out. In addition, the idea that the choices of ‘situations’ falling under the Court's jurisdiction is left to one unaccountable individual, who employs vague concepts of ‘gravity’ and ‘interests of justice’ to explain these, is the Court's greatest flaw. The Court remains confronted by the need to address shortcomings that have manifested themselves in its first years of operation. Nevertheless, there are many encouraging signs that it continues to enjoy the confidence of a large number of states.Less

Simplified Methods

Paul R. Gregory

in Terror by Quota: State Security from Lenin to Stalin (an Archival Study)

This chapter examines how the Soviet Union dictator's “productivity problem” was resolved by the so-called “simplified” methods, particularly the use of troikas and the substitution of confession for ... More

This chapter examines how the Soviet Union dictator's “productivity problem” was resolved by the so-called “simplified” methods, particularly the use of troikas and the substitution of confession for proof. It explains that both Vladimir Lenin and Joseph Stalin changed the procedures in the repression cycle of investigation, arrest, trial, conviction, and punishment when they needed substantially more repressions and that they resorted to simplified judicial procedures during repression upturns. The chapter also discusses the principle of simplified procedures, which focused on obtaining confessions rather than gathering material evidence.Less

Other Criminal Trial–Related Competency Issues: Miranda Waivers/Confessions, Waiver of Counsel, Guilty Pleas, and Competence to Testify

Thomas L. Hafemeister

in Criminal Trials and Mental Disorders

Chapter 7 addresses other competency issues that may arise in conjunction with criminal justice proceedings. There are a range of such issues, and each potentially targets a different functional ... More

Chapter 7 addresses other competency issues that may arise in conjunction with criminal justice proceedings. There are a range of such issues, and each potentially targets a different functional capacity. They include the competence to waive your Miranda rights and confess to a crime or make other self-incriminating statements; the competence to plead guilty and waive your right to a trial; the competence to waive your right to an attorney and represent yourself; and the competence to testify. This chapter provides a brief examination of the history and evolution of each of these competency issues, their governing standards, and related judicial procedures. To frame this discussion, an examination is provided of various potential impacts of mental disorders on each of these criminal trial-related competencies.Less

Thomas Potts's ‘dusty memory’: reconstructing justice in The Wonderfull Discoverie of Witches

Marion Gibson

in The Lancashire Witches: Histories and Stories

This chapter demonstrates that “The Wonderfull Discoverie” by Thomas Potts is the clearest example of an account published to display the shining efficiency and justice of the legal system. The ... More

This chapter demonstrates that “The Wonderfull Discoverie” by Thomas Potts is the clearest example of an account published to display the shining efficiency and justice of the legal system. The literary genre of witchcraft stories and their relationship with the trials of 1612 is analyzed. By comparing Potts's account with what is known of Jacobean judicial procedures, it is shown that Potts arranged the evidence in a kind of ‘mock trial’, designed to convey the impression of a transparent courtroom reconstruction at the same time as subtly manipulating the evidence. His exceptional craft appears still more clearly from the systematic reading of all the surviving accounts of witchcraft from the period. Potts's text turns out to be an unusually late and detailed example of a genre, which had been disused in England for some twenty years: the evidence-based account of witchcraft. The analysis of Potts text suggests that witchcraft itself was seen as not a fact but an impossible crime, which had itself to be constructed in the minds of all those concerned, victims and accusers alike. The construction of Potts's account provides an understanding of the construction of the trial, of the evidence, and of the crime itself.Less

Criminal Procedure

Sir John Baker

in The Oxford History of the Laws of England: Volume VI 1483–1558

This chapter examines the criminal procedure in England during the Tudor period. During this period, miscarriages of justice were regarded with particular horror because punishment for murder and ... More

This chapter examines the criminal procedure in England during the Tudor period. During this period, miscarriages of justice were regarded with particular horror because punishment for murder and felony was death. Some historians and contemporaries considered the severity of the English legal system as inherently barbarous without regard for the value of human life. This chapter argues that such was not the case during this period. It explains that felons could be saved clergy, pardons, sanctuary, and the jury system itself. In addition, the penal system tended to permit the indiscriminate discharge of the guilty because of the absence of a power of discretionary sentencing.Less

Advice, Advisers, and Courtiers Decision Making and Advice in the Royal Book of the Illustrated Chronicle Compilation

Daniel B. Rowland

in God, Tsar, and People: The Political Culture of Early Modern Russia

This chapter investigates the problem of advice and advisers in the political culture of Muscovy, which was found to be vitally important to the various authors of the tales about the Time of ... More

This chapter investigates the problem of advice and advisers in the political culture of Muscovy, which was found to be vitally important to the various authors of the tales about the Time of Troubles. It shows that consultation with advisers, together with other legitimizing factors, was a crucial ingredient in the Illustrated Chronicle Compilation (ICC) when depicting proper judicial procedure prior to punishment. It also discusses ICC artists that were careful to represent the legitimating features of legal procedure, which were notably absent in cases of violence processed outside the official legal system. The chapter focuses on the imagery in the ICC that depict crucial moments in the succession from Vasilii III to Ivan IV. It confirms whether the pattern of presenting the monarch together with its advisers holds true for the ICC.Less

Medieval Procedure and Judicial Decision Making

Martyn Rady

in Customary Law in Hungary: Courts, Texts, and the Tripartitum

The procedures of the courts were episodic in so far as the case was not heard in a single concentrated event. They also had safeguards built in to ensure that the proper result was secured, even to ... More

The procedures of the courts were episodic in so far as the case was not heard in a single concentrated event. They also had safeguards built in to ensure that the proper result was secured, even to the extent that the whole case might be retried. The sequence of episodes were the laying of the plaint, the summons, the calling of the case, its opening or Levata, the formalized parrying of claims and counter-claims, the proof through examination of written evidence, oath taking and inquests, and the final determination. In many cases, the courts worked towards negotiated solutions. The practice of the courts and their composition meant, however, that outcomes were often uncertain and that even the most basic principles of the customary law might be set aside. A high degree of unpredictability thus attended court judgments.Less

Dispositions Following a Successful Insanity Defense and Risk Assessments

Thomas L. Hafemeister

in Criminal Trials and Mental Disorders

Chapter 11 considers the dispositions and management of defendants who have been found not guilty by reason of insanity (NGRI). A common misperception is that defendants found NGRI are released back ... More

Chapter 11 considers the dispositions and management of defendants who have been found not guilty by reason of insanity (NGRI). A common misperception is that defendants found NGRI are released back into the community upon completion of the trial. The reality is that they are typically placed in a secure psychiatric setting where they will not be released until deemed non-dangerous by a presiding judge, which may result in them spending more time in the custody of the state than if they had been convicted of the crime with which they were charged. This chapter explores the dispositions of NGRI acquittees, the nature of these dispositions, the post-trial evaluations and judicial proceedings they must undergo to obtain release, bases for revoking authorized releases, and associated forensic mental health evaluations, risk assessments, and commonly identified risk factors.Less