“Cerberus at the Gate”: The Fundamental Connection between Prosecutorial Discretion and Justice

Under the complex circumstances and the limited capacity in which the International Criminal Court (ICC) operates, the role of its prosecutor has been challenging. The ICC prosecutor cannot pursue all situations for investigation, and cases for prosecution. She has to be selective. Moreover, the individuals and the crimes over which the Court exercises its jurisdiction, and the present circumstances in which it operates raise political sensitivities that might undermine the ability of the Court to deliver its justice effectively. The ICC prosecutor faces a complex dilemma in negotiating a relationship between fealty to the law and the impact and possible benefits of political exigencies in delivering justice. It also raises the problem of the role of political considerations within the decision-making process. The exercise of discretion lies at the heart of these challenges, as the ICC’s Statute allows the prosecutor to exercise significant discretion. This thesis will explore and analyse the discretionary power of the ICC prosecutor. It situates the development of the office historically by referring to the experiences of the War Crimes Tribunals after World War II and the two United Nations Tribunals of the 1990’s. Against this background, it examines the scope of discretion and the way the Prosecutor has exercised it. This thesis will suggest that there has been a tendency to overlook the necessity of distinguishing between various senses of discretion open to the prosecutor to exercise. In exploring the scope of discretion, the thesis will argue that there is wider range of discretion with different senses, available to the Prosecutor and that has been exercised by her, when applying legal thresholds. In assessing these legal thresholds, the focus will be on ‘sufficient gravity’ and ‘the interests of justice’. The thesis will suggest that the indeterminacy of the legal thresholds, such as ‘sufficient gravity’ is the space, which, in effect, allows decision-makers to exercise a wide range of discretion. The thesis refers to this discourse as legal interpretative discretion. This is to be distinguished from prosecutorial discretion, which is a different concept and allows decision-makers to consider extra-legal considerations, as the case with the term ‘interests of justice ’. An implication of the interpretation of the terms like ‘sufficient gravity’, is that the prosecutor can appear to possess almost unlimited power. In exploring the relationship between the two types of discretion the thesis will root the analysis within a close reading of examples of the investigations and prosecutions, and the scholarly literature. The thesis also discusses the relevance of political considerations within the decision-making process in the context of the exercise of prosecutorial discretion. It suggests that there need not be a conflict between the broad sense of justice as outlined in the Statute and political factors in giving effect to decisions. The thesis engages with the repeated statements by prosecutors, which have denied the use of discretion and asserted a fealty to strict legalism. It suggests that beneath these statements lie a resource, discretion, which helps not hinders international criminal justice.

Upon declaring a situation admissible and available for conducting an effective investigation, the Prosecutor approaches the end of the preliminary examination. However, it is not yet the end of the road of the situation selection. The last criterion that should be taken into account before the Prosecutor decides to select a situation is the interests of justice presumption. Article 53(1)(c) of the Rome Statute obliges the Prosecutor to consider whether “taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.” Introducing the interests of justice notion provides the Prosecutor with “an enormous scope for what amounts to a highly discretionary determination.” The Prosecutorial discretion is not limited to select a specific situation, but it includes her discretion to reject other situations. Therefore, the judgment of the ICC as legitimate and credible depends also on the lack of its Prosecutor's discretion to initiate an investigation. The interests of justice presumption under Article 53 has some remarkable features that make this concept unique in the situation selection process. The Prosecutor of the Court holds that the issue of the interests of justice represents “one of the most complex aspects of the treaty.” The current chapter closes the substantive part of studying the situation selection by shedding light on the meaning and effects of the interests of justice concept in the Rome Statute. The interests of justice presumption is, however, applicable to the case selection process too. A case is selected for prosecution if its selection does not have any countervailing effects on the interests of justice. In this Chapter, the interest of justice presumption as a factor that plays a prominent role in the situation selection regime will be discussed to provide a better understanding of this notion. EXCEPTIONALITY OF THE INTERESTS OF JUSTICE REQUIREMENT The OTP has designed four phases in the preliminary examination. Phase 1, according to the OTP Policy Paper on preliminary Examinations, aims at preventing those situations which are manifestly outside of the Court's jurisdiction to be examined. Phase 2 entails assessing the jurisdiction of the Court. Phase 3 examines the admissibility requirement. The last phase deals with the statutory requirement of the interests of justice.

Judicious Imprisonment: Does Current Sentencing for Non-Violent Offenses Promote Political Legitimacy?

We aim in this paper to explore several related challenges to contemporary analytical legal theorists who accept as theoretically foundational the state-based view of legality and legal system advanced by H.L.A. Hart. We contend that this approach contains internal explanatory problems which limit the view’s capacity to account for novel prima facie legal phenomena outside the typical experience of the law-state. We supplement the analytical approach by advancing the rudiments of what we call an ‘inter-institutional theory of legality,’ a theory of legality derived from a morally-neutral, descriptive-explanatory picture of legal system qua system of legal institutions. Our theory additionally enables us to account for the novel prima facie legal phenomena we identify, and to conclude that while prior analytical legal theorists’ approaches to legality and legal system were historically right to depart from the example of the municipal legal system, that example and departure point are no longer most salient, so explanation of the legality within the state is no longer sufficient as a general explanation of legality. We aim in this pa per to ex plore sev eral re lated chal lenges to con tem po rary an a lyt i cal le gal the o rists who ac cept as the o ret i cally foun da tional the state-based view of le gal ity and le gal sys tem ad vanced by H.L.A. Hart. We con tend that this ap proach con tains in ter nal ex plan a tory prob lems which limit the view’s ca pac ity to ac count for novel prima fa cie le gal phe nom ena out side the typ i cal ex pe ri ence of the law-state. We sup ple ment the an a lyt i - cal ap proach by ad vanc ing the ru di ments of what we call an ‘inter-in sti tu - tional the ory of le gal ity,’ a the ory of le gal ity de rived from a mor ally-neu tral, de scrip tive-ex plan a tory pic ture of le gal sys tem qua sys tem of le gal in sti tu - tions. Our the ory ad di tion ally en ables us to ac count for the novel prima fa - cie le gal phe nom ena we iden tify, and to con clude that while prior an a lyt i cal le gal the o rists’ ap proaches to le gal ity and le gal sys tem were his tor i cally right to de part from the ex am ple of the mu nic i pal le gal sys tem, that ex am - ple and de par ture point are no lon ger most sa lient, so ex pla na tion of the le - gal ity within the state is no lon ger suf fi cient as a gen eral ex pla na tion of le - gal ity. 86 CULVER / GIUDICE

The article is devoted to the issues of implementing a legal conception into legislation and social reality. Specifically, it explores the path that legal conceptions take from their creators' consciousness to legal doctrine, lawmaking, and law enforcement. The oral or written publication of a concept elicits an appropriate response from the environment – positive, negative, neutral, or mixed. The recognition of a legal conception determines its integration into legal doctrine (an indicator of such recognition is primarily citation). It is emphasized that legal concepts are vulnerable to plagiarism, as copyright law excludes concepts from the scope of its legal protection. From legal doctrine, a legal conception moves into the normative base and practical realm. Generally, it initially enters legislation and then societal reality, but there are exceptions. For instance, the history of Ukrainian law knows other cases where a legal conception was implemented in societal life without prior integration into legislation. A recognized legal conception can determine the content of all or specific provisions of a law (including the constitution or code), international treaty, subordinate normative-legal act, interpretative act of a constitutional jurisdiction authority, judicial or administrative decision, etc. A legal conception, projected onto social relations through the intermediary of legislative text, is usually not fully reflected in them. It should be understood that the norm of the legislation is applied in social life, and its content in most cases corresponds to the provisions of the concept partially and limitedly. The brevity and fragmentary nature of the text of a normative-legal act sometimes lead to misunderstanding or incorrect application of the concept's provisions, on which it was based. Specific examples of the influence of legal conceptions on legislation and social practice in Ukraine and other countries are highlighted. The example of H. Kelsen and the historical significance of his conception of constitutional justice are considered. Certain directions of influence on the modern legal system of Ukraine by scientific conceptions of representatives of the Faculty of Law of Ivan Franko National University of Lviv are shown

In this chapter, I reflect on the topic of ‘lay decision-making in the legal system’ from the perspective of the economic analysis of law. Or, in other words, I look at the ways in which economic theory and insight can help resolve issues of legal decision-making by providing both a methodology for the analysis of the legal reality to which the decision relates (that is, contributing to the decision-making process by structuring it and helping us focus on relevant factors), and a normative framework and workable criteria to favour some alternatives over others (i.e. providing a decision-making benchmark). Broadly, then, I am concerned with the question of how economic analysis can help us improve legal decision-making. After this broad overview, and in order to stress the link with the rest of the contributions to this book, I briefly focus on the potential application of some of these theories to research that aims to assess specific issues of lay decision-making in the legal system. Some final thoughts stress the importance of carrying out economically-informed legal research more generally.

The hierarchy of pluralisms – substantive and normative – can nonetheless claim a common dialectical framework in which to discuss questions of obligation. Thus, I would thus argue that a crucial component in providing a transnational legal framework for the TNE must be the Tuori/Hendry idea of a common concept or language, focused on justice. There are many legal domains which have an account (or accounts) based on justice. If justice is indeed the law’s common principle, then this applies from the extremes of Dworkin’s interpretivism to strict positivism; even the latter must admit to at least the principle that, as Perelman puts it, ‘essentially similar situations be passed on in a uniform way’. But, as Teubner argues, discursive legal justice is nonideal; it is polycontextual in that: ‘From the beginning it is split into different avenues. Each different concept of justice is realised in one specific social practice, obeys one partial rationality and one partial normativity’ Teubner rejects appeals to reciprocity and distribution due to law’s inherent imperfection in translating extra-legal norms to legal form, which ‘is why practitioners of law have always been sceptical towards rational theories of justice in the style of Rawls and Habermas’. For Teubner, juridical justice represents law’s internal struggle against itself, its self-transcendence and re-entry; a continuous cycle which strives ‘to respond sensitively to extremely divergent external demands and to strive at the same time for high consistency’. Like many, I often struggle to grasp the sophistication and abstraction of Teubner’s thinking. I hope I do not do him an injustice when I say that it seems to me that there is room for dialogue in between the Rawlsian and Habermasian concepts which Teubner rightly casts as impossible for the law to translate within its own bounded, self-referential (ir)rationality, and the pure reflexivity of justice as law’s inner Lucifer, condemned to a perpetual cycle of bringing light to law’s darker recesses before falling to the abyss of positivistic self-reinforcement. As I shall argue shortly, what law can take from moral philosophy – in this case the global justice debate – is new information 45 Unless one adopts a pure functionalist approach that denies the relevance of justice entirely. 46 See Chapter 4, p.238 47 Chaim Perelman, Justice, Law, and Argument: Essays on Moral and Legal Reasoning (Dordrecht, London, Boston: Reidel, 1980) 48 Teubner, (n44) at 6 49 ibid, 13 50 ibid, 10

The prosecutorial independence of the Attorney General (AG) is a firmly established constitutional convention in Canada, but it is also an evolving convention, subject to ongoing contestation and debate. This article is a contribution to that debate. It defends a normative constitutional framework wherein the AG’s authority to make final decisions in matters of criminal prosecution is balanced against a corresponding duty to consult with cabinet and the prime minister on the public interest implications of prosecutorial decisions when the circumstances warrant. Within this normative framework, respectful contestation and debate amongst ministers, the prime minister, and the AG in determining the public interest merits of prosecution is welcomed, even encouraged, and if conducted with the requisite integrity, objectivity, and transparency, it is regarded not as a threat but as a valuable check and balance on AG independence and an indispensable form of quality control on the exercise of prosecutorial discretion.

ion and formality of rules and principles with the rich complexity of real life. The featureless juridical person is contrasted with 'the concrete human being', rich in specific attributes.2 Very quickly we are shunted to the conclusion that juridical discourse 'mystifies' the concrete realities of social existence. An approach along these lines can be developed in at least two different ways. The dichotomy results from the simple fact that all rules and principles, and all conceptions of justice, abstract from the concrete circumstances of real life in so far as they treat certain features of those circumstances as morally relevant, and others as irrelevant. This was most famously pointed out by Marx in his Critique of the Gotha Programme: Right can by its nature only consist in the application of an equal standard, but unequal individuals (and they would not be different individuals if they were not unequal) can only be measured by the same standard if they are looked at from the same aspect, if they are grasped from one particular side, eg, if in the present case they are regarded only as workers and nothing else is seen in them, everything else is ignored.25 Thus the contrast between juridical abstraction and societal complexity can be employed in two different ways: ' A point made by Murphy, op cit, 173. 23 An alternative view would be that, when one pleads for mercy, one appeals to no feature of the case, but to the virtue of the judge. This is inadequate as an explanation, however. For, even if we accept that the plea for mercy is an appeal to the judge's virtue, there must be something in the defendant's case to which the exercise of mercy can be a response. Otherwise, mercy would seem to be entirely self-regarding and solipsistic: the particular case or defendant would simply provide an occasion for the exercise of mercy. This seems to detach mercy too severely from the belief that it is a manifestation of love or compassion for another. Even if the plea for mercy is an appeal to the judge's virtue, therefore, it must also be grounded in some feature of the defendant's situation: and if not some general feature, then perhaps the status of unique particularity. 24 I borrow the label for this rhetorical form from Leszek Kolakowski, but Kolakowski's treatment of it is very different from my own. See Kolakowski, Modernity on Endless Trial (Chicago, 1990) 44. 25 Marx, 'Critique of the Gotha Programme', in The First International and After, (ed) David Fernbach (London, 1974). This content downloaded from 207.46.13.14 on Tue, 14 Jun 2016 07:14:48 UTC All use subject to http://about.jstor.org/terms SPRING 1993 Judgment and Mercy 61 (i) The criticism may be that some features of real situations are excluded as irrelevant by legal rules when in fact they are relevant. But criticism of this kind simply amounts to an attack on the conception of justice embodied in the existing rules, and the assertion of a rival conception of justice. Thus it might be claimed that disparities of wealth should be relevant to criminal responsibility, and that the law is 'mystificatory' in that it suppresses such differences by treating them as irrelevant. Since this argument offers a critique framed in terms of justice, it can cast no light on mercy as a value distinct from that of justice. (ii) On the other hand the criticism may be a more radical one, claiming that the nature of human subjectivity is such that it always and necessarily escapes adequate subsumption under the general categories of thought. Since this criticism entails a rejection of all rules and conceptions of justice (in line with Marx's argument) it can only be employed in the service of an antinomian anarchism or totalitarianism that will be attractive to few people. If something resembling the second of these positions is adopted, the value of mercy may be found significant as an indication of the extent to which, even within the context of juridical institutions, the concrete human being always partially escapes the all-pervading demands of justice: the subject is never fully subsumable under the categories of law. What the position also reveals, however, is the way in which the 'concrete human being' may be identical with an idea to which it might at first seem radically opposed: the Kantian 'noumenal self. Precisely in escaping all general categories and characterizations, that which is irreducibly concrete turns out to be featureless and irreducibly abstract. We will see a further development of this point in a moment.

This article aims to introduce a distinct conception of Indigenous environmental justice (IEJ) based on Indigenous legal orders, knowledge systems, and conceptions of justice. This is not to suggest in any way that the existing environmental justice (EJ) scholarship is flawed; in fact, the scholarship and activism around EJ have been central in diagnosing and drawing attention to injustices that occur on a systematic basis everywhere in the world. This article argues instead that such discussions can be expanded by acknowledging that concepts of environmental justice, including distinct legal orders informed by Indigenous knowledge systems, already existed on Turtle Island for thousands of years prior to the arrival of Europeans. It also suggests that environmental justice framed within Indigenous worldviews, ontologies, and epistemologies may make significant contributions to broader EJ scholarship, particularly in relation to extending justice to other beings and entities in Creation. This approach acknowledges ongoing colonialism and emphasizes the need to decolonize in order to advance innovative approaches to IEJ.

The concept of justice is a fundamental debate and is always actual throughout the life of humankind. Justice, in the history of human thought, began since the era of Socrates, Plato, and Aristotle. The concept or justice theorizing is still actual, not final yet, until nowadays. It is caused by its characteristics which are abstract and so meaningful. Therefore, it needs justice theorizing to find a comprehensive understanding about justice in order to find out components contained in it through research activity. One of the law purposes is justice. It needs law instruments to meet the law purpose such as Legislation, legal weight, customary law, canon law, and many others. All the law instruments can rule specific things such as provisions in the field of family law. Polygamy is a controversial problem whereby in its debate emerges various opinions primarily on the justice concept as the main requirement in polygamy. Some scholars interpret that justice in polygamy merely deals with material aspect. However, some others interpret that justice in polygamy covers the aspects of material and immaterial (love and compassion).

--------- (The Concept of Justice in the History of Political and Legal Thought)

The Chinese 法 and 律, or 法律, do not bear the meaning of 'the law and the right' (jus), nor do they embody the concept of justice. It was not until the Western legal thought made its appearance in China did the meaning of 法 and 律, or 法律, started to bear the meaning of 'the law and the right' as a result of the play of the Western ideology. Thus, it gives the old Chinese language a new connotation, and hence the new meanings of 法 and 法律 as we understand them today. The Chinese 法學 is translated from the word jurisprudence or science of law , but since it refers to 法學 as 'philosophy of law' no less than it may refer to 法學 as 'legal science', when it is used in the academic circle it always gives rise to the discrepancy of which of the two meanings it really means. Moreover, the word jurisprudence, as specified by the philosophy of law and the legal theory, is also translated as 法理學 in Chinese, and this confuses furthermore with the Chinese terminology 法學, 法律學, 基礎法學, and 法學基礎理論. This paper is an attempt, by etymological means, to make clear the meanings of 法and 律 in ancient Chinese books and to search for the Western legal language sources to differentiate the meanings of 法, 律 and 法律, to discuss the appropriateness of the term jurisprudence as translated into the Chinese 法學 and 法理學 in tense of their present connotations as well as to study on issues regarding translation, language and meaning.

Русская пражурналистика: концепт справедливости и концепт законности в риторике протопопа Аввакума

This chapter provides a comprehensive account of Aristotle’s views on law and justice. It starts off with the differences between Plato’s and Aristotle’s theories. It then discusses in detail Aristotle’s analysis of the various kinds of justice in the Nicomachean Ethics, and moves to the Rhetoric with its conception of legality and ‘fairness’ (epieikeia). It then concludes with an analysis of how different conceptions of justice, as well as a commitment to the supremacy of law, informs Aristotle’s various constitutional taxonomies in the Politics. It discusses in particular the relationship between various notions of proportional justice and particular regimes (politeiai), with a focus on democracy and oligarchy.