In recent decades, jurisdictionally separate common law commercial courts have emerged alongside existing civil law judicial systems, particularly in the Middle East. Although these unique common law judicial outposts are creating complex jurisdictional dynamics with their local civil law counterparts, their existence is also inspiring innovative structural solutions and cultural interactions. Recent cases in Dubai and Qatar reveal that the originally intended limited jurisdiction of these common law courts is expanding beyond what Michael Hwang once famously termed ‘common law lakes in civil law oceans’. One of the ways in which common law courts are expanding their remit beyond the bounds of their financial centre ‘lakes’ is by making it easier for litigants to ‘opt in’ to the jurisdiction. Increasingly, an identity crisis has also gripped some of these courts as they now regularly accept and identify themselves as local ‘State courts’. From the perspective of these courts and their institutional credibility, the State court designation is positive for their growth and acceptance. Being a State court allows financial centre courts to capture litigation where contractual language has employed the State courts language in forum election clauses. This article explores the expansion of these international commercial courts and consequent or potential tensions with local judicial structures. Delicately managed, the expansion of jurisdiction of these common law ‘outposts’ can contribute to a legal synthesis influencing both law and legal cultures, including the broader judicial systems of host States. The experience of the two jurisdictions explored in this article is instructive for the future design of similar judicial instrumentalities in similar financial centre projects in other emerging economies.
{"title":"Navigating Judicial Conflict amidst Jurisdictional Expansion: Common Law Commercial Courts in Arab Civil Law Countries","authors":"A. Dahdal","doi":"10.1093/cjcl/cxad009","DOIUrl":"https://doi.org/10.1093/cjcl/cxad009","url":null,"abstract":"\u0000 In recent decades, jurisdictionally separate common law commercial courts have emerged alongside existing civil law judicial systems, particularly in the Middle East. Although these unique common law judicial outposts are creating complex jurisdictional dynamics with their local civil law counterparts, their existence is also inspiring innovative structural solutions and cultural interactions. Recent cases in Dubai and Qatar reveal that the originally intended limited jurisdiction of these common law courts is expanding beyond what Michael Hwang once famously termed ‘common law lakes in civil law oceans’. One of the ways in which common law courts are expanding their remit beyond the bounds of their financial centre ‘lakes’ is by making it easier for litigants to ‘opt in’ to the jurisdiction. Increasingly, an identity crisis has also gripped some of these courts as they now regularly accept and identify themselves as local ‘State courts’. From the perspective of these courts and their institutional credibility, the State court designation is positive for their growth and acceptance. Being a State court allows financial centre courts to capture litigation where contractual language has employed the State courts language in forum election clauses. This article explores the expansion of these international commercial courts and consequent or potential tensions with local judicial structures. Delicately managed, the expansion of jurisdiction of these common law ‘outposts’ can contribute to a legal synthesis influencing both law and legal cultures, including the broader judicial systems of host States. The experience of the two jurisdictions explored in this article is instructive for the future design of similar judicial instrumentalities in similar financial centre projects in other emerging economies.","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2023-06-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43603573","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article presents the first empirical evidence on the Chinese judicial assessment of pain and suffering damages for wrongful death. Drawing upon 1,225 Chinese judicial decisions of medical negligence resulting in a patient’s wrongful death, it investigates the empirical effects of various guiding factors that the Supreme People’s Court requires lower courts to consider when awarding the pain and suffering damages, and further tests the deep pockets theory and the anchoring effect theory in the real-life setting of Chinese wrongful death litigation. Based on regression analysis, this study finds that the awarded economic damages, the causal contribution of the defendant’s negligence, and the living standard of the court’s locality positively correlate with the amount of pain and suffering damages in wrongful death cases. It also finds empirical evidence supporting the deep pockets effect and the anchoring effect in Chinese courts’ awarding pain and suffering damages for wrongful death.
{"title":"Loss of a Loved One: An Empirical Study of Pain and Suffering Awards in Wrongful Death Cases in China","authors":"C. Ding, Pei Zhi","doi":"10.1093/cjcl/cxad006","DOIUrl":"https://doi.org/10.1093/cjcl/cxad006","url":null,"abstract":"\u0000 This article presents the first empirical evidence on the Chinese judicial assessment of pain and suffering damages for wrongful death. Drawing upon 1,225 Chinese judicial decisions of medical negligence resulting in a patient’s wrongful death, it investigates the empirical effects of various guiding factors that the Supreme People’s Court requires lower courts to consider when awarding the pain and suffering damages, and further tests the deep pockets theory and the anchoring effect theory in the real-life setting of Chinese wrongful death litigation. Based on regression analysis, this study finds that the awarded economic damages, the causal contribution of the defendant’s negligence, and the living standard of the court’s locality positively correlate with the amount of pain and suffering damages in wrongful death cases. It also finds empirical evidence supporting the deep pockets effect and the anchoring effect in Chinese courts’ awarding pain and suffering damages for wrongful death.","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2023-06-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47269758","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article is based on remarks and presentations made at two symposiums—namely, the International Online Symposium on Sino–Indian Border Disputes: A Dialogue between International Law and International Relations, and the Second International Online Symposium on The Peaceful Settlement of the Sino–Indian Boundary Dispute: A Pragmatic Multidisciplinary Framework (中國法與比較法研究中心第二次國際在線研討會—[和平解決中印邊界爭端：務實的多學科框架]). These were hosted by the City University of Hong Kong’s School of Law: Centre for Chinese and Comparative Law, in collaboration with the Public Law and Human Rights Forum, on 4 March 2021 and 9 December 2021 respectively. The article reflects on the nature of the Sino–Indian Border Dispute (SIBD) and provides transitory remarks on concepts that promote either its settlement or the mitigation/maintenance of its status quo. Based on the range of issues and variables raised by discussants regarding challenges and opportunities of the SIBD, articulated from the perspectives of international law and international relations, history, political science, geography, and more, this article emphasizes a multidisciplinary approach to SIBD settlement with a context-specific assessment of each sector.
{"title":"Report on Sino–Indian Border Disputes: International Law and International Relations Perspectives","authors":"F. Lone","doi":"10.1093/cjcl/cxad005","DOIUrl":"https://doi.org/10.1093/cjcl/cxad005","url":null,"abstract":"\u0000 This article is based on remarks and presentations made at two symposiums—namely, the International Online Symposium on Sino–Indian Border Disputes: A Dialogue between International Law and International Relations, and the Second International Online Symposium on The Peaceful Settlement of the Sino–Indian Boundary Dispute: A Pragmatic Multidisciplinary Framework (中國法與比較法研究中心第二次國際在線研討會—[和平解決中印邊界爭端：務實的多學科框架]). These were hosted by the City University of Hong Kong’s School of Law: Centre for Chinese and Comparative Law, in collaboration with the Public Law and Human Rights Forum, on 4 March 2021 and 9 December 2021 respectively. The article reflects on the nature of the Sino–Indian Border Dispute (SIBD) and provides transitory remarks on concepts that promote either its settlement or the mitigation/maintenance of its status quo. Based on the range of issues and variables raised by discussants regarding challenges and opportunities of the SIBD, articulated from the perspectives of international law and international relations, history, political science, geography, and more, this article emphasizes a multidisciplinary approach to SIBD settlement with a context-specific assessment of each sector.","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2023-06-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44119808","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Western researchers have produced significant insight into sexual harassment in Western contexts, but sexual harassment in Chinese society remains largely unexplored. To address this comparative inquiry, this article explores the development of an understanding of workplace sexual harassment and the legal regulation thereof in China—a State with a socialist legal system that has characteristics specific to its context. Through a thorough review of the historical foundations, legislative change over time, and judicial practice, I explore two questions: (i) how do Chinese laws define sexual harassment and (ii) how do Chinese lawmakers perceive the wrong done by sexual harassment? This article reveals that, over two decades of legislation, a sexual harassment legal system has gradually taken shape in China. This system is based on a paradigm distinct from the two major paradigms in the Western world: the American-style discrimination approach and the Continental employee dignity approach. Notwithstanding some attempts to use the American approach, the Chinese legal authorities are developing an alternative personality paradigm where sexual harassment is framed as a tortious infringement on an individual’s right to personality. I argue that the personality paradigm, though strategic and advantageous in terms of expanding the scope of protection to victims, is inadequate in addressing workplace sexual harassment as well as protecting women as the most vulnerable class of victims, which calls for further legal reform to rectify the deviation. In light of this, I offer concrete proposals for China’s sexual harassment legal reform in the future.
{"title":"Workplace Sexual Harassment in China: A Comparative Inquiry into the Personality-Based Paradigm","authors":"Jiahui Duan","doi":"10.1093/cjcl/cxad008","DOIUrl":"https://doi.org/10.1093/cjcl/cxad008","url":null,"abstract":"\u0000 Western researchers have produced significant insight into sexual harassment in Western contexts, but sexual harassment in Chinese society remains largely unexplored. To address this comparative inquiry, this article explores the development of an understanding of workplace sexual harassment and the legal regulation thereof in China—a State with a socialist legal system that has characteristics specific to its context. Through a thorough review of the historical foundations, legislative change over time, and judicial practice, I explore two questions: (i) how do Chinese laws define sexual harassment and (ii) how do Chinese lawmakers perceive the wrong done by sexual harassment? This article reveals that, over two decades of legislation, a sexual harassment legal system has gradually taken shape in China. This system is based on a paradigm distinct from the two major paradigms in the Western world: the American-style discrimination approach and the Continental employee dignity approach. Notwithstanding some attempts to use the American approach, the Chinese legal authorities are developing an alternative personality paradigm where sexual harassment is framed as a tortious infringement on an individual’s right to personality. I argue that the personality paradigm, though strategic and advantageous in terms of expanding the scope of protection to victims, is inadequate in addressing workplace sexual harassment as well as protecting women as the most vulnerable class of victims, which calls for further legal reform to rectify the deviation. In light of this, I offer concrete proposals for China’s sexual harassment legal reform in the future.","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2023-06-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47353376","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article discusses China’s newly enacted Family Education Promotion Law (FEPL). The FEPL symbolizes that family education through parenting has elevated from a private matter to a State affair in the country. The Law seeks to promote family governance through the concept of ‘parenting in accordance with the law’ so as to attain national ideals and improve the protection of minors. The prominent ends at the national level are the moral development of children and the construction of a harmonious State. Concepts of ‘population quality’ and ‘double alleviation’ are discussed with reference to their significance in relation to the enactment of the Law. The promulgation of the FEPL targets substandard parenting practices in China, including hyper-parenting on the one end and abandonment on the other. Typical practices such as inter-generational child-rearing are examined to illustrate why the Law is considered necessary from the State’s point of view. The article provides an analysis of the legislative intentions, background, and key provisions of the Law. It concludes that family governance through the notion of responsible parenting is an instrument of social policy in modern China.
{"title":"China’s Family Education Promotion Law: Family Governance, the Responsible Parent and the Moral Child","authors":"Kwan Yiu Cheng","doi":"10.1093/cjcl/cxad004","DOIUrl":"https://doi.org/10.1093/cjcl/cxad004","url":null,"abstract":"\u0000 This article discusses China’s newly enacted Family Education Promotion Law (FEPL). The FEPL symbolizes that family education through parenting has elevated from a private matter to a State affair in the country. The Law seeks to promote family governance through the concept of ‘parenting in accordance with the law’ so as to attain national ideals and improve the protection of minors. The prominent ends at the national level are the moral development of children and the construction of a harmonious State. Concepts of ‘population quality’ and ‘double alleviation’ are discussed with reference to their significance in relation to the enactment of the Law. The promulgation of the FEPL targets substandard parenting practices in China, including hyper-parenting on the one end and abandonment on the other. Typical practices such as inter-generational child-rearing are examined to illustrate why the Law is considered necessary from the State’s point of view. The article provides an analysis of the legislative intentions, background, and key provisions of the Law. It concludes that family governance through the notion of responsible parenting is an instrument of social policy in modern China.","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2023-06-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41623818","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
We use the 1910 Copyright Code of the Great Qing Dynasty (Qing Copyright Code) as a lens to understand China’s initial encounter with international intellectual property norms, examine the dynamic political economy in which the law was enacted, and provide an overview of the structure and important provisions of the Qing Copyright Code. We argue that, although foreign pressure was an important factor shaping the Qing Copyright Code, the Code was designed not to protect the economic interests of foreigners in China but to achieve a pair of distinct goals: advance China’s national interests in accessing Western knowledge and incentivize the production and dissemination of knowledge in the country. This argument is substantiated by not only the political economy of the legislation but also the later implementation of the law.
{"title":"Internationally Driven, but Domestically Aware, Legislation in Troubled Times: The First Copyright Statute in China","authors":"Jyh-An Lee, Yangzi Li","doi":"10.1093/cjcl/cxad001","DOIUrl":"https://doi.org/10.1093/cjcl/cxad001","url":null,"abstract":"\u0000 We use the 1910 Copyright Code of the Great Qing Dynasty (Qing Copyright Code) as a lens to understand China’s initial encounter with international intellectual property norms, examine the dynamic political economy in which the law was enacted, and provide an overview of the structure and important provisions of the Qing Copyright Code. We argue that, although foreign pressure was an important factor shaping the Qing Copyright Code, the Code was designed not to protect the economic interests of foreigners in China but to achieve a pair of distinct goals: advance China’s national interests in accessing Western knowledge and incentivize the production and dissemination of knowledge in the country. This argument is substantiated by not only the political economy of the legislation but also the later implementation of the law.","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2023-02-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44337114","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In the contracting States of the Convention on Contracts for the International Sale of Goods (CISG), where the CISG applies via its Article 1, the courts have a duty under public international law to apply its rules automatically, regardless of the parties’ awareness in this respect. At the same time, the parties have a subsequent autonomy based on Article 6 of the CISG to exclude the application of the Convention, which may be done expressly or by implication. Such an exclusion may take place at various stages of the parties’ legal relationship, including during legal proceedings. Due to the fact that the legal representatives are often not aware of the CISG’s existence and its potential automatic application to the given case, when a dispute arises, they may fail to plead or base their arguments on the basis of its applicable rules. This article focuses on the adjudicator’s duty to apply the CISG ex officio, together with the possibility and requirements regarding its exclusions made during legal proceedings, given the example of two recent Chinese cases. In this contribution, it is advocated that the failure by the parties’ representatives to plead and base their arguments during litigation over the applicable CISG rules is not a sufficient indication of their intention to exclude the Convention.
{"title":"CISG Exclusion during Legal Proceedings","authors":"Małgorzata Pohl-Michałek","doi":"10.1093/cjcl/cxad003","DOIUrl":"https://doi.org/10.1093/cjcl/cxad003","url":null,"abstract":"\u0000 In the contracting States of the Convention on Contracts for the International Sale of Goods (CISG), where the CISG applies via its Article 1, the courts have a duty under public international law to apply its rules automatically, regardless of the parties’ awareness in this respect. At the same time, the parties have a subsequent autonomy based on Article 6 of the CISG to exclude the application of the Convention, which may be done expressly or by implication. Such an exclusion may take place at various stages of the parties’ legal relationship, including during legal proceedings. Due to the fact that the legal representatives are often not aware of the CISG’s existence and its potential automatic application to the given case, when a dispute arises, they may fail to plead or base their arguments on the basis of its applicable rules. This article focuses on the adjudicator’s duty to apply the CISG ex officio, together with the possibility and requirements regarding its exclusions made during legal proceedings, given the example of two recent Chinese cases. In this contribution, it is advocated that the failure by the parties’ representatives to plead and base their arguments during litigation over the applicable CISG rules is not a sufficient indication of their intention to exclude the Convention.","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2023-02-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49472019","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Though the legal framework of urban planning plays a significant role in determining the nature of urban development, there is limited scholarship on the planning law regimes of different jurisdictions, especially in Asia and the global South. For countries like India, where the rule of law is seen to be weak and implemented arbitrarily, much of academic scholarship has focused on informality in urban planning, and the formal planning process has been relatively ignored. This article attempts to elucidate the planning law regime that operates in India through a close examination of the legal and institutional framework of urban planning in the city of Bangalore. It traces the colonial roots of India’s urban planning system, examines the institutions and processes of planning that operate in Bangalore, highlights the debates around the contents of the master plan, and examines the difficulty of enforcing the plan. This article argues that the fundamental concern with India’s urban planning regime is the disjuncture between the authority to plan and local democratic accountability. Even after the passing of the 74th Constitutional Amendment in 1992, which sought to empower municipalities by vesting them with multiple powers including that of urban planning, the master plan for Bangalore is still not prepared by the elected municipal government but by an unelected parastatal agency controlled by the state government. The article also discusses the concerns regarding the top-down planning process which does not provide adequate avenues for public participation, the static land-use based master plans that do not integrate key sectors of urban development, and the government’s approach of addressing non-enforcement of plans by legalizing violations of planning norms.
{"title":"The Travails of Urban Planning in India: An Examination of the Planning Law Regime of Bangalore","authors":"Mathew Idiculla","doi":"10.1093/cjcl/cxad002","DOIUrl":"https://doi.org/10.1093/cjcl/cxad002","url":null,"abstract":"\u0000 Though the legal framework of urban planning plays a significant role in determining the nature of urban development, there is limited scholarship on the planning law regimes of different jurisdictions, especially in Asia and the global South. For countries like India, where the rule of law is seen to be weak and implemented arbitrarily, much of academic scholarship has focused on informality in urban planning, and the formal planning process has been relatively ignored. This article attempts to elucidate the planning law regime that operates in India through a close examination of the legal and institutional framework of urban planning in the city of Bangalore. It traces the colonial roots of India’s urban planning system, examines the institutions and processes of planning that operate in Bangalore, highlights the debates around the contents of the master plan, and examines the difficulty of enforcing the plan. This article argues that the fundamental concern with India’s urban planning regime is the disjuncture between the authority to plan and local democratic accountability. Even after the passing of the 74th Constitutional Amendment in 1992, which sought to empower municipalities by vesting them with multiple powers including that of urban planning, the master plan for Bangalore is still not prepared by the elected municipal government but by an unelected parastatal agency controlled by the state government. The article also discusses the concerns regarding the top-down planning process which does not provide adequate avenues for public participation, the static land-use based master plans that do not integrate key sectors of urban development, and the government’s approach of addressing non-enforcement of plans by legalizing violations of planning norms.","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2023-02-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41916104","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Wai Yee Wan, Court-Supervised Restructuring of Large Distressed Companies in Asia—Law and Policy","authors":"Andrew Godwin","doi":"10.1093/cjcl/cxac027","DOIUrl":"https://doi.org/10.1093/cjcl/cxac027","url":null,"abstract":"","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2022-09-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44164122","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Both the Blackstone ratio and due process are cornerstones of classical philosophy in criminal law and justice around the world. However, less consideration has been paid to contemporary society and whether the public shares this theoretical approach. Using data from four waves of the International Social Survey Programme, examining public attitudes towards controlling habitual criminals and suspected terrorists across countries, I offer evidence for how preference towards authorities’ reactions (a proxy of fear of crime) affects preferences about judicial errors. My analysis shows that (i) the public supports the authorities in taking action against criminals and terrorists without a court order, though in different proportions depending on the specific means at hand; (ii) the apparent paradox of public support for the elegance of due process and fear of crime can be explained by the difficult reality of controlling criminals; (iii) absolute proponents consider type one errors to be worse and thus will not support any measures being taken, while absolute proponents consider type two errors to be worse and steps therefore need to be taken to prevent communities from the risk from crime or terrorist attacks; (iv) members of the public who favour proactive policing are significantly less likely to consider type one errors to be worse than type two; and (v) citizens across countries share the above features in a longitudinal survey. Legislators, law professors, and criminologists in transitional risk societies around the world should reconsider their justification of anti-Blackstonian theory and the crime control model.
{"title":"Rethinking the Blackstone Ratio with Global Public Opinion: Crime Control and Due Process","authors":"Moulin Xiong","doi":"10.1093/cjcl/cxac026","DOIUrl":"https://doi.org/10.1093/cjcl/cxac026","url":null,"abstract":"\u0000 Both the Blackstone ratio and due process are cornerstones of classical philosophy in criminal law and justice around the world. However, less consideration has been paid to contemporary society and whether the public shares this theoretical approach. Using data from four waves of the International Social Survey Programme, examining public attitudes towards controlling habitual criminals and suspected terrorists across countries, I offer evidence for how preference towards authorities’ reactions (a proxy of fear of crime) affects preferences about judicial errors. My analysis shows that (i) the public supports the authorities in taking action against criminals and terrorists without a court order, though in different proportions depending on the specific means at hand; (ii) the apparent paradox of public support for the elegance of due process and fear of crime can be explained by the difficult reality of controlling criminals; (iii) absolute proponents consider type one errors to be worse and thus will not support any measures being taken, while absolute proponents consider type two errors to be worse and steps therefore need to be taken to prevent communities from the risk from crime or terrorist attacks; (iv) members of the public who favour proactive policing are significantly less likely to consider type one errors to be worse than type two; and (v) citizens across countries share the above features in a longitudinal survey. Legislators, law professors, and criminologists in transitional risk societies around the world should reconsider their justification of anti-Blackstonian theory and the crime control model.","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2022-08-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42796596","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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