Like Ethan, my blogging’s been somewhat curtailed of late because of the atonement season along with some other “distractions.” My favorite one so far this week was the pleasure of spending much of the last two days with Paul Robinson, from Penn, who came down to FSU for our faculty enrichment series. In addition to presenting excerpts from a forthcoming book on the distributive principles of criminal liability and sentencing, Paul co-taught my seminar on sentencing law and policy on Wednesday. (Not all of our guest speakers have to pay this tax but Jack Chin will be another victim next month, when we discuss post-conviction disabilities on offenders, such as felon disenfranchisement.)
Anyway, as some of you may know, Paul is deeply involved with the codification of criminal law both around the US (e.g., Illinois) as well as abroad. He consults with an array of foreign states, including the Maldives, some of whom have seriously illiberal practices or laws. I asked him about whether he thinks there’s a problem of dirty hands by writing criminal codes for these countries. Helpfully, he pointed me to an interesting exchange he had with neo-con political commentator Daniel Pipes. Pipes raised a similar question, specifically about Paul’s work for the Maldives, which was to be guided by Shari’a principles; Pipes thought Paul’s work there (under the aegis of the UN) could facilitate state-sanctioned oppression of women, slaves, and non-Muslims. Here is Pipes’ piece (note the ridiculous title), which also includes Paul’s thoughtful response at the bottom. Here’s a link also to the article Paul and his advanced crim law students from Penn wrote about the experience. And here’s Pipes’ critical updates on the matter.
I think Paul’s got me persuaded for the most part. There’s a scent of Lon Fuller’s spirit lingering over notions that having a codification of criminal law is an unalloyed good, since it at least reduces the likelihood of disparity based on arbitrary or random judicial crime-creation and enforcement. Others might think that, in a second-best world, it is better to give space for the possibly brave or heroic judge to operate even in a troubling or wicked legal regime. Notwithstanding my reluctance of supporting countries with super-crummy criminal justice systems like China, there is something to be said for going over and trying to offer the basis for reform through teaching and persuasion. It’s not as if one abandons one’s right to be critical of end-products that are still shameful, and there is the hope of instigating some changes. But conscience nags too. In the end, I think my sense is that the morality of “constructive engagement” is more apparent when situated in the context of urging legal code reform than say balancing the bad of human rights abuses for greater trade access. Am I wrong? Should there even be the nag of conscience? Or should it prevail?
Posted by Administrators on September 21, 2007 at 12:29 PM