Society of Legal Scholars Criminal Justice Section Response to Sexual Offences Guideline Consultation (Sentencing Council Consultation 2012-2013)

Consultation Report

A 'deleterious' effect? : Australian legal education and the production of the legal identity

A body of critical legal scholarship argues that, by the time they have completed their studies, students who enter legal education holding social ideals and intending to use their legal education to achieve social change, have become cynical about the ability of the law to do so and no longer possess such ideals. This is explained by critical scholars to be the result of a process of ideological indoctrination, aimed at ensuring that graduates uphold the narrow and conservative interests of the legal profession and capitalist society, being exercised by law schools acting as adjuncts of the legal profession, and exercised upon the passive body of the law student. By using Foucault’s work on knowledge, power, and the subject to interrogate the assumptions upon which this narrative is based, this thesis intends to suggest a way of thinking differently to the approach taken by many critical legal scholars. It then uses an analytics of government (based on Foucault’s notion of ‘governmentality’) to consider the construction of the legal identity differently. It examines the ways in which the governance of the legal identity is rationalised, programmed, and implemented, in three Queensland law schools. It also looks at the way that five prescriptive texts to ‘surviving’ law school suggest students establish and practise a relation to themselves in order to construct their own legal identities. Overall, this analysis shows that governance is not simply conducted in the profession’s interests, but occurs due to a complex arrangement of different practices, which can lead to the construction of skilled legal professional identities as well as ethical lawyer-citizens that hold an interest in justice. The implications of such an analytics provide the basis for original ways of understanding legal education, and legal education scholarship.

What once was old is new again: reviving an early-modern form of interdisciplinarity for socio-legal studies

Socio-legal studies are an essentially interdisciplinary enterprise. However, there is currently only one form of interdisciplinarity that most socio-legal scholars (and criminologists) recognise and work with. This form is derived from the idea that 'society itself' - and by this most scholars mean 'civil society' - drives the law. However, another, rival understanding of society, which we term the authoritarian-liberal statist understanding that slipped from view in the late seventeenth century and remained obscure from then until now, may be used to generate another form of interdisciplinarity for sOcio-legal studies (and for criminology). However, this rival understanding of society does not simply allow us to reconfigure our notion of 'society'; it radically changes the role society plays in relation to the law. Two crucial points emerge from this rival account: first, society can no longer be understood as separable from (even though interacting with) the law; and second, society can no longer be understood as driving the law.

Legal Reasoning in Context

This study in EU law analyses the reasoning of the Court of Justice (the Court of Justice of the European Union) in a set of its preliminary rulings. Preliminary rulings are answers to national courts questions on the interpretation (and validity) of EU law called preliminary references. These questions concern specific legal issues that have arisen in legal disputes before the national courts. The Court of Justice alone has the ultimate authority to interpret EU law. The preliminary rulings bind the national courts in the cases giving rise to the preliminary reference, and the interpretations of EU law offered in the preliminary rulings are considered generally binding on all instances applying EU law. EU law is often described as a dynamic legal order and the Court of Justice as at the vanguard of developing it. It is generally assumed that the Court of Justice is striving to realise the EU s meta-level purpose (telos): integration. Against this backdrop one can understand the criticism the Court of Justice is often faced with in certain fields of EU law that can be described as developing. This criticism concerns the Court s (negatively) activist way of not just stating the law but developing or even making law. It is difficult to analyse or prove wrong this accusation as it is not in methodological terms clearly established what constitutes judicial activism, or more exactly where the threshold of negative activism lies. Moreover, one popular approach to assessing the role of the Court of Justice described as integration through law has become fairly political, neglecting to take into consideration the special nature of law as both facilitating and constraining action, not merely a medium for furthering integration. This study offers a legal reasoning approach of a more legalist nature, in order to balance the existing mix of approaches to explaining what the Court of Justice does and how. Reliance on legal reasoning is found to offer a working framework for analysis, whereas the tools for an analysis based on activism are found lacking. The legal reasoning approach enables one to assess whether or not the Court of Justice is pertaining to its own established criteria of interpretation of EU law, and if it is not, one should look more in detail at how the interpretation fits with earlier case-law and doctrines of EU law. This study examines the reasoning of the Court of Justice in a set of objectively chosen cases. The emphasis of the study is on analysing how the Court of Justice applies the established criteria of interpretation it has assumed for itself. Moreover, the judgments are assessed not only in terms of reasoning but also for meaningful silences they contain. The analysis is furthermore contextualised by taking into consideration how the cases were commented by legal scholars, their substantive EU law context, and also their larger politico-historical context. In this study, the analysis largely shows that the Court of Justice is interpreting EU law in accordance with its previous practice. Its reasoning retains connection with the linguistic or semiotic criteria of interpretation, while emphasis lies on systemic reasoning. Moreover, although there are a few judgments where the Court of Justice offers clearly dynamic reasoning or what can be considered as substantive reasoning stemming from, for example, common sense or reasonableness, such reasons are most often given in addition to systemic ones. In this sense and even when considered in its broader context, the case-law analysed in this study does not portray a specifically activist image of the Court of Justice. The legal reasoning approach is a valid alternative for explaining how and why the Court of Justice interprets EU law as it does.

The Jama legal narrative. Part II: A foray into concepts of improbability

In judicial decision making, the doctrine of chances takes explicitly into account the odds. There is more to forensic statistics, as well as various probabilistic approaches which taken together form the object of an enduring controversy in the scholarship of legal evidence. In this paper, we reconsider the circumstances of the Jama murder and inquiry (dealt with in Part I of this paper: "The Jama Model. On Legal Narratives and Interpretation Patterns"), to illustrate yet another kind of probability or improbability. What is improbable about the Jama story, is actually a given, which contributes in terms of dramatic underlining. In literary theory, concepts of narratives being probable or improbable date back from the eighteenth century, when both prescientific and scientific probability was infiltrating several domains, including law. An understanding of such a backdrop throughout the history of ideas is, I claim, necessary for AI researchers who may be tempted to apply statistical methods to legal evidence. The debate for or against probability (and especially bayesian probability) in accounts of evidence has been flouishing among legal scholars. Nowadays both the the Bayesians (e.g. Peter Tillers) and Bayesioskeptics (e.g. Ron Allen) among those legal scholars whoare involved in the controversy are willing to give AI researchers a chance to prove itself and strive towards models of plausibility that would go beyond probability as narrowly meant. This debate within law, in turn, has illustrious precedents: take Voltaire, he was critical of the application or probability even to litigation in civil cases; take Boole, he was a starry-eyed believer in probability applications to judicial decision making (Rosoni 1995). Not unlike Boole, the founding father of computing, nowadays computer scientists approaching the field may happen to do so without full awareness of the pitfalls. Hence, the usefulness of the conceptual landscape I sketch here.

The Jama legal narrative part II: A foray into concepts of improbability

In judicial decision making, the doctrine of chances takes explicitly into account the odds. There is more to forensic statistics, as well as various probabilistic approaches, which taken together form the object of an enduring controversy in the scholarship of legal evidence. In this paper, I reconsider the circumstances of the Jama murder and inquiry (dealt with in Part I of this paper: 'The JAMA Model and Narrative Interpretation Patterns'), to illustrate yet another kind of probability or improbability. What is improbable about the Jama story is actually a given, which contributes in terms of dramatic underlining. In literary theory, concepts of narratives being probable or improbable date back from the eighteenth century, when both prescientific and scientific probability were infiltrating several domains, including law. An understanding of such a backdrop throughout the history of ideas is, I claim, necessary for Artificial Intelligence (AI) researchers who may be tempted to apply statistical methods to legal evidence. The debate for or against probability (and especially Bayesian probability) in accounts of evidence has been flourishing among legal scholars; nowadays both the Bayesians (e.g. Peter Tillers) and the Bayesio-skeptics (e.g. Ron Allen), among those legal scholars who are involved in the controversy, are willing to give AI research a chance to prove itself and strive towards models of plausibility that would go beyond probability as narrowly meant. This debate within law, in turn, has illustrious precedents: take Voltaire, he was critical of the application of probability even to litigation in civil cases; take Boole, he was a starry-eyed believer in probability applications to judicial decision making. Not unlike Boole, the founding father of computing, nowadays computer scientists approaching the field may happen to do so without full awareness of the pitfalls. Hence, the usefulness of the conceptual landscape I sketch here.

Humanitarian intervention and the issue of state sovereignty in the discourse of legal experts between the 1830s and the First World War

This article discusses the tensions between the principle of state sovereignty and the idea of a "humanitarian intervention" (or a intervention on humanitarian grounds) as they resulted from the debate of leading legal scholars in the 19th and early 20th century. While prominent scholars such as Johann Caspar Bluntschli, Gustave Rolin Jaequemyns or Aegidius Arntz spoke out in favour of a form of "humanitarian interventions", others such as August Wilhelm Heffter or Pasquale Fiore were much more critical and in many cases spoke out in favour of absolute state sovereignty.

Capital 2.0 capital formation and legal risk in a new global economic order from fiat to exit: including case studies of the proposed transatlantic trade and investment partnership between the United States and the European Union and the financing relation between the United States and the People’s Republic of China

Following the intrinsically linked balance sheets in his Capital Formation Life Cycle, Lukas M. Stahl explains with his Triple A Model of Accounting, Allocation and Accountability the stages of the Capital Formation process from FIAT to EXIT. Based on the theoretical foundations of legal risk laid by the International Bar Association with the help of Roger McCormick and legal scholars such as Joanna Benjamin, Matthew Whalley and Tobias Mahler, and founded on the basis of Wesley Hohfeld’s category theory of jural relations, Stahl develops his mutually exclusive Four Determinants of Legal Risk of Law, Lack of Right, Liability and Limitation. Those Four Determinants of Legal Risk allow us to apply, assess, and precisely describe the respective legal risk at all stages of the Capital Formation Life Cycle as demonstrated in case studies of nine industry verticals of the proposed and currently negotiated Transatlantic Trade and Investment Partnership between the United States of America and the European Union, TTIP, as well as in the case of the often cited financing relation between the United States and the People’s Republic of China. Having established the Four Determinants of Legal Risk and its application to the Capital Formation Life Cycle, Stahl then explores the theoretical foundations of capital formation, their historical basis in classical and neo-classical economics and its forefathers such as The Austrians around Eugen von Boehm-Bawerk, Ludwig von Mises and Friedrich von Hayek and most notably and controversial, Karl Marx, and their impact on today’s exponential expansion of capital formation. Starting off with the first pillar of his Triple A Model, Accounting, Stahl then moves on to explain the Three Factors of Capital Formation, Man, Machines and Money and shows how “value-added” is created with respect to the non-monetary capital factors of human resources and industrial production. Followed by a detailed analysis discussing the roles of the Three Actors of Monetary Capital Formation, Central Banks, Commercial Banks and Citizens Stahl readily dismisses a number of myths regarding the creation of money providing in-depth insight into the workings of monetary policy makers, their institutions and ultimate beneficiaries, the corporate and consumer citizens. In his second pillar, Allocation, Stahl continues his analysis of the balance sheets of the Capital Formation Life Cycle by discussing the role of The Five Key Accounts of Monetary Capital Formation, the Sovereign, Financial, Corporate, Private and International account of Monetary Capital Formation and the associated legal risks in the allocation of capital pursuant to his Four Determinants of Legal Risk. In his third pillar, Accountability, Stahl discusses the ever recurring Crisis-Reaction-Acceleration-Sequence-History, in short: CRASH, since the beginning of the millennium starting with the dot-com crash at the turn of the millennium, followed seven years later by the financial crisis of 2008 and the dislocations in the global economy we are facing another seven years later today in 2015 with several sordid debt restructurings under way and hundred thousands of refugees on the way caused by war and increasing inequality. Together with the regulatory reactions they have caused in the form of so-called landmark legislation such as the Sarbanes-Oxley Act of 2002, the Dodd-Frank Act of 2010, the JOBS Act of 2012 or the introduction of the Basel Accords, Basel II in 2004 and III in 2010, the European Financial Stability Facility of 2010, the European Stability Mechanism of 2012 and the European Banking Union of 2013, Stahl analyses the acceleration in size and scope of crises that appears to find often seemingly helpless bureaucratic responses, the inherent legal risks and the complete lack of accountability on part of those responsible. Stahl argues that the order of the day requires to address the root cause of the problems in the form of two fundamental design defects of our Global Economic Order, namely our monetary and judicial order. Inspired by a 1933 plan of nine University of Chicago economists abolishing the fractional reserve system, he proposes the introduction of Sovereign Money as a prerequisite to void misallocations by way of judicial order in the course of domestic and transnational insolvency proceedings including the restructuring of sovereign debt throughout the entire monetary system back to its origin without causing domino effects of banking collapses and failed financial institutions. In recognizing Austrian-American economist Schumpeter’s Concept of Creative Destruction, as a process of industrial mutation that incessantly revolutionizes the economic structure from within, incessantly destroying the old one, incessantly creating a new one, Stahl responds to Schumpeter’s economic chemotherapy with his Concept of Equitable Default mimicking an immunotherapy that strengthens the corpus economicus own immune system by providing for the judicial authority to terminate precisely those misallocations that have proven malignant causing default perusing the century old common law concept of equity that allows for the equitable reformation, rescission or restitution of contract by way of judicial order. Following a review of the proposed mechanisms of transnational dispute resolution and current court systems with transnational jurisdiction, Stahl advocates as a first step in order to complete the Capital Formation Life Cycle from FIAT, the creation of money by way of credit, to EXIT, the termination of money by way of judicial order, the institution of a Transatlantic Trade and Investment Court constituted by a panel of judges from the U.S. Court of International Trade and the European Court of Justice by following the model of the EFTA Court of the European Free Trade Association. Since the first time his proposal has been made public in June of 2014 after being discussed in academic circles since 2011, his or similar proposals have found numerous public supporters. Most notably, the former Vice President of the European Parliament, David Martin, has tabled an amendment in June 2015 in the course of the negotiations on TTIP calling for an independent judicial body and the Member of the European Commission, Cecilia Malmström, has presented her proposal of an International Investment Court on September 16, 2015. Stahl concludes, that for the first time in the history of our generation it appears that there is a real opportunity for reform of our Global Economic Order by curing the two fundamental design defects of our monetary order and judicial order with the abolition of the fractional reserve system and the introduction of Sovereign Money and the institution of a democratically elected Transatlantic Trade and Investment Court that commensurate with its jurisdiction extending to cases concerning the Transatlantic Trade and Investment Partnership may complete the Capital Formation Life Cycle resolving cases of default with the transnational judicial authority for terminal resolution of misallocations in a New Global Economic Order without the ensuing dangers of systemic collapse from FIAT to EXIT.

Global knowledge cultures

Knowledge is about cultural power. Considering that it is both resource and product within the brave new world of fast capitalism, this collection argues for knowledge cultures that are mutually engaged and hence more culturally inclusive and socially productive. Globalized intellectual property regimes, the privatization of information, and their counterpoint, the information and creative commons movements, constitute productive sites for the exploration of epistemologies that talk with each other rather than at and past each other. Global Knowledge Cultures provides a collection of accessible essays by some of the world’s leading legal scholars, new media analysts, techno activists, library professionals, educators and philosophers. Issues canvassed by the authors include the ownership of knowledge, open content licensing, knowledge policy, the common-wealth of learning, transnational cultural governance, and information futures. Together, they call for sustained intercultural dialogue for more ethical knowledge cultures within contexts of fast knowledge capitalism.

Ending the life of the act/omission dispute: Causation in withholding and withdrawing life-sustaining measures

My aim in this paper is to challenge the increasingly common view in the literature that the law on end of life decision making is in disarray and is in need of urgent reform. My argument is that this assessment of the law is based on assumptions about the relationship between the identity of the defendant and their conduct, and about the nature of causation, which, on examination, prove to be indefensible. I then provide a clarification of the relationship between causation and omissions which proves that the current legal position does not need modification, at least on the grounds that are commonly advanced for the converse view. This enables me, in conclusion, to clarify important conceptual and moral differences between withholding, refusing and withdrawing life-sustaining measures on the one hand, and assisted suicide and euthanasia, on the other.

Explorations into the Sociology of Criminal Justice and Punishment. Leaving the Modernist Project Behind

Law has been a close partner to sociology from its very beginning, and the partnership often has proven to be extremely prolific for sociology. Grand theories as well as vital conceptual tools can be counted among its offspring. Both disciplines share the common ground of socio-legal studies, which has developed into a nearly independent interdisciplinary enterprise where legal scholars and sociologists happily meander between the normative and the analytical. From the vast array of topics in the field of socio-legal studies I select the sociology of criminal justice and punishment in order to demonstrate the characteristics of this relationship. The partnership between sociology and law emerged as part of the modernization project in the 19th and 20th centuries, and the sociology of punishment was part of this endeavour. Rooted in a strong tradition of old (Durkheim) and new (Elias, Foucault) classics, recent developments in this field are leaving the idea of an `unproblematically modern punishment' (Whitman, 2005a) behind, and new fields of inquiry for comparative lawyers and sociologists are opening up.

Transfer pricing and multinational financial institutions : the case for replacing arm’s length price with a unitary approach

The international tax system, designed a century ago, has not kept pace with the modern multinational entity rendering it ineffective in taxing many modern businesses according to economic activity. One of those modern multinational entities is the multinational financial institution (MNFI). The recent global financial crisis provides a particularly relevant and significant example of the failure of the current system on a global scale. The modern MNFI is increasingly undertaking more globalised and complex trading operations. A primary reason for the globalisation of financial institutions is that they typically ‘follow-the-customer’ into jurisdictions where international capital and international investors are required. The International Monetary Fund (IMF) recently reported that from 1995-2009, foreign bank presence in developing countries grew by 122 per cent. The same study indicates that foreign banks have a 20 per cent market share in OECD countries and 50 per cent in emerging markets and developing countries. Hence, most significant is that fact that MNFIs are increasingly undertaking an intermediary role in developing economies where they are financing core business activities such as mining and tourism. IMF analysis also suggests that in the future, foreign bank expansion will be greatest in emerging economies. The difficulties for developing countries in applying current international tax rules, especially the current traditional transfer pricing regime, are particularly acute in relation to MNFIs, which are the biggest users of tax havens and offshore finance. This paper investigates whether a unitary taxation approach which reflects economic reality would more easily and effectively ensure that the profits of MNFIs are taxed in the jurisdictions which give rise to those profits. It has previously been argued that the uniqueness of MNFIs results in a failure of the current system to accurately allocate profits and that unitary tax as an alternative could provide a sounder allocation model for international tax purposes. This paper goes a step further, and examines the practicalities of the implementation of unitary taxation for MNFIs in terms of the key components of such a regime, along with their their implications. This paper adopts a two-step approach in considering the implications of unitary taxation as a means of improved corporate tax coordination which requires international acceptance and agreement. First, the definitional issues of the unitary MNFI are examined and second, an appropriate allocation formula for this sector is investigated. To achieve this, the paper asks first, how the financial sector should be defined for the purposes of unitary taxation and what should constitute a unitary business for that sector and second, what is the ‘best practice’ model of an allocation formula for the purposes of the apportionment of the profits of the unitary business of a financial institution.

Decriminalization of Health and Safety at Work in Australia

ABOUT THE BOOK As the title Safety or Profit? suggests, health and safety at work needs to be understood in the context of the wider political economy. This book brings together contributions informed by this view from internationally recognized scholars. It reviews the governance of health and safety at work, with special reference to Australia, Canada, Sweden, and the United Kingdom. Three main aspects are discussed. The restructuring of the labor market: this is considered with respect to precarious work and to gender issues and their implications for the health and safety of workers. The neoliberal agenda: this is examined with respect to the diminished power of organized labor, decriminalization, and new governance theory, including an examination of how well the health-and-safety-at-work regimes put in place in many industrial societies about forty years ago have fared and how distinctive the recent emphasis on self-regulation in several countries really is. The role of evidence: there is a dearth of evidence-based policy. The book examines how policy on health and safety at work is formulated at both company and state levels. Cases considered include the scant regard paid to evidence by an official inquiry into future strategy in Canada; the lack of evidence-based policy and the reluctance to observe the precautionary principle with respect to work-related cancer in the United Kingdom; and the failure to learn from past mistakes in the Deepwater Horizon disaster in the Gulf of Mexico. Intended Audience: Researchers; policymakers, trade union representatives, and officials interested in OHS; postgraduate students of OHS; OHS professionals; regulatory and socio-legal scholars.

The doctrinal method: Incorporating interdisciplinary methods in reforming the law

The doctrinal methodology is in a period of change and transition. Realising that the scope of the doctrinal method is too constricting, academic lawyers are becoming eclectic in their use of research method. In this transitional time, legal scholars are increasingly infusing evidence (and methods) from other disciplines into their reasoning to bolster their reform recommendations. This article considers three examples of the interplay of the discipline of law with other disciplines in the pursuit of law reform. Firstly the article reviews studies on the extent of methodologies and reformist frameworks in PhD research in Australia. Secondly it analyses a ‘snapshot’ of recently published Australian journal articles on criminal law reform. Thirdly, it focuses on the law reform commissions, those independent government committees that play such an important role in law reform in common law jurisdictions. This examination demonstrates that while the doctrinal core of legal scholarship remains intact, legal scholars are endeavouring to accommodate statistics, comparative perspectives, social science evidence and methods, and theoretical analysis, within the legal research framework, in order to provide additional ballast to the recommendations for reform.