Reviews for Law of Criminal and Civil Evidence Principles and Practice

The average rating for Law of Criminal and Civil Evidence Principles and Practice based on 2 reviews is 4.5 stars.

Review # 1 was written on 2015-12-24 00:00:00 John Shannon ‘Hokay. So. Here’s the earth: It’s all green and fertile and shit. But whatever would a legal theorist of 20th century Europe writing in 1950 think is missing? If you guessed a human societal system that determines how the world goes ‘round, you win! According to Schmitt, modern time is divided into a series of “nomos”- erroneously translated as “rules” which make up a whole system of rules, “nomos” in a Schmittian (god that’s an awkward name to “-ian”) sense means a community of political entities united by certain underlying systems and assumptions that bind them together and create a workable world order. There are two major characteristics that define each nomos: 1- land appropriation. Schmitt believes that the process of “land appropriation” consists of three stages: claiming, division, and production. How this process is recognized and regulated will describe a particular nomos to you. 2- definition of war. The order that defines war is the order that rules the earth, and the definition of what constitutes “war” in both substance and actors is the other key to understanding how the order is perpetuated. But at the most basic level, everything must be based on a spatial order, with concrete lines, otherwise it means nothing. Schmitt is essentially doing history backwards, trying to solve the central problematic of the rise and fall of Europe’s power in the world. In order to do this, he lays out the succession of “nomos” that have ruled the world. He begins with the Romans, although isn’t too interested in them except for a few things. He carefully notes how each state/empire (like Rome) sees their territory as “the world”- meaning civilization, where rules apply as opposed to the outside, which is uninteresting unless threatening. As a consequence, There is NO idea of a common spatial order of spheres, so NO idea of coexistence in a common space where rules must be made- so as the Age of Discovery and a “global consciousness” starts to come about, this sort of system is necessarily dead. Where he really starts to get interested is with what he refers to as the Respublica Christiana. This is the international law system of the European Middle Ages. In this system, there are also two sets of rules: one for territory that belongs to Christians, and one for the “heathen” lands, which, especially since the 7th century, became Muslim territories. This idea gives content to the idea of “Europe,” insofar as that is the land where rules of “European soil” apply, and areas outside are “free soil”- since unoccupied by Christians, that territory was free to be “given” to missionaries. Rulers in this system could acquire land and make war, but it MUST of necessity be a religious war- there is no other kind of war at this time. Here is where “just war” doctrine enters- you must believe yourself on the side of God, and therefore, the other person must be the devil. Therefore, he could not continue to exist. Therefore, all wars must be wars of complete annhiliation- no room for recognizing the Other as human. The Pope and the Holy Roman Empire were to play the function of what he calls a “katcheton,” which is the restrainer of the anti-Christ, or, practically speaking, chaos, or unjust war. While there is a somewhat fuzzy conception of territory, with domains being based more on jurisdictional authority (people, not land), Schmitt argues that this still had a system of its own that qualifies it for the land-appropriation category. In this viewpoint, as long as everyone could recognize each other as a member of this community, and circled around Rome, and the Pope still had the authority to organize Crusades, this order still held. This community of Christians is even tightened by the discovery of the new world. He sees this discovery as absolutely pivotal, and an unrepeatable historical anomaly that forced Christianity to account for an entirely new world that was not present in the Bible, and what to do with it. Accordingly, the ideas about “free soil” vs. “European soil” were extended to this New World, with everything on one side of a line operating in a state of nature, under a different status. He interestingly applies this to the growth of piracy at this time too: freedom of the sea vs. limits on land is another hallmark that starts to develop. Two different concepts of the sea begin to be posited: one by France, who finds the sea the common property of all, one by England, who finds the sea to be the property of no one- presaging, of course, future problems. As England rises, the status of pirates and freebooters, formerly tolerated or even encouraged, but certainly acknowledged as not falling within the law, came to be changed with England’s claim to rule over the seas. But then, of course, came Luther, saying “Here I stand, I can do no other.” As my professor said, there is just no room for this in the medieval mindset of orientation towards Rome. This is the beginning of the end. THEN we get the next order: the Jus Publicum Europaeum of the title. This order is based around an entirely different set of concepts. For one, the essential actors in this law are states, who are conceptualized as individuals, but may or may not be so. The law of Europe is strictly juxtaposed against the law of elsewhere, developing firmly the concept of “amity lines” where everything is allowed “beyond the line” and redrawing them as necessary with the changing o borders. The state is the only legitimate actor in war now- war is one state fighting another. And, importantly, such wars are sanctioned and allowed as long as they meet this criteria. He spends a lot of time drawing a picture of the idea of an “enemy” or a “Justus hostis” in international law. An “enemy,” in war is depicted as sharply distinct from a “criminal” in war. Not all enemies are criminals- an enemy you still have to treat like a human being, and not subject to total annihilation, because technically all war is allowable, within certain bounds. Schmitt regards this as the greatest achievement of the European world order- he refers to this as the “bracketing of war.” From the 16th to the late 19th century, so goes the tale, this system of lines, with Europe as the “sacral center of the earth,” held true. In his viewpoint, it starts to fall apart with the French Revolution, which makes “self-determination” the ideal rather than legitimacy. Then after the “fake” restoration of the 19th century, it really falls apart by 1890 (the year Bismarck leaves office) due to a number of factors including the ambiguity of the foreign policy of the world’s rising great power, the United States, the dissolution of consensus about the meaning of war and the “lines of the world,” and the fact that nations from outside of Europe had joined the European system of international law. This last point helps to drive home one of the major underpinnings of his theory. Namely, that instead of believing that the fact that other states wanted to join the European state system constituted “the triumph of… European international law,” Europe should have recognized that states outside the balance-of-power state system of Europe that had already been established needed to be “shown out the door.” Schmitt posits that the attempt to expand European law to other areas of the world should not have been attempted because these states “lack any spatial or spiritual consciousness of what they once had in common… and a common bracketing of war no longer was feasible, and for which not even the concept of ‘civilization’ could provide any concrete homogeneity.” In his view, a proper nomos must have specific roots in both a particular space and particular spatial concept of the world, otherwise it results in an order “taking a headlong leap into the nothingness of a universality lacking any grounding in space or on land,” and which therefore has no meaning. While this may appear Euro-superior or nationalistic in some way, it is actually indicative of his conception of how the international order works: that no matter what happens in Europe, everyone is concerned about it, especially the Great Powers, which creates a situation in which everyone is very spatially conscious because all changes of space and territory affect them. Other powers joining do not have this consciousness, and therefore the new international order, far from simply globalizing Europe, pulled the “sacral center” away from its shores. Schmitt is vehemently anti-Versailles*, for the stated reason that it finally destroyed what was left of the meaning of the old “nomos” and did not replace it with any coherent system afterward- there is no agreement on what a “war” means and who is a legitimate actor, land consciousness has completely gone by the wayside, and there is no juridical precision in definitions any longer, only the interference of political thinking. The United States becomes the new “sacral center” of the earth, where the new nomos should be formed, because it gets to define war (as evidenced by Wilson and the Kellogg-Briand pact) and its order is also determined by free soil/taken land appropriations (Manifest Destiny). Schmitt sees the nomos of the United States as being characterized by simultaneous presence and absence- political absence officially even while its economics and unofficial opinions continue to dictate the course of the new order. The US will not lead because it is still supposedly isolationist for a time, so this creates utter confusion and impreciseness that ends up leading to all sorts of chaos and ultimately into World War II. He also believes that the US’ unofficial influence has led to a “criminalization” of war which has dehumanized the institution once more and lead us back into a more “just war” oriented conception of war which makes war into essentially a “police action” and the “aggressor” (which he thinks is poorly and worrisomely defined now as well- is everyone who fires the first shot really the aggressor, to be blamed for the war?) into a criminal who must be tried and put behind bars. He gets into really interesting distinctions of “aggressor” and “aggressive war,” and definitions of “recognition,” the meaning of “neutrality,” and how the US fucked with it, and some really fascinating logic about “legal title” due to things like occupation and discovery and what the status of “military occupation” means in light of constitutions. Schmitt ultimately does not approve of many of the United States’ actions, but also believes that it is the only power possible of steering the world into a new coherent nomos. In today’s globalized world, a great amount of time is spent trying to define what it is that defines and links entities of all kinds, particularly as these definitions have become more imbued with political meaning and power in an age of nationalism and identity politics. In this sense, Carl Schmitt’s great focus on the construction of things through an examination of lines, borders, “bracketing”, and differentiated space feels quite contemporary and immediate to some major trends of study in academia, including the theorization of borders and the study of the formation of identity. Due to my academic background in European studies, I found his striking examination of the formation of the idea of “Europe,” as a juridical concept used to differentiate the legal status of the countries of the continent from that of America was a fascinating concept, and hard not to contrast to the declaration by Spengler (whose Decline of the West I recently read) that “Europe is an empty word.” He completely takes the word “Europe” out of the place it is typically thought to inhabit- the intellectual and cultural trends it is traditionally held to have slowly developed out of- and turns it into a byproduct, an accidental result of a practical division of power which combined with a sense of the limits of the “world” and the “free space” beyond it where the rules of the limited “world” did not apply. His focus on the prevalence of lines in European wars and explorations and the subsequent different uses of those lines seems particularly pertinent- “lines” of all kinds have come to seem self-evidently important, to the extent that they do not require an explanation. I see this present frequently in European Union enlargement discussions- “Turkey is not in Europe,” or, for example, “Morocco will be next,” being posed as a threat against Turkey’s EU admission, taken to seem absurd because it is so far “beyond the line.” It could also be argued that even today a manifestation of the idea of “free space” still exists in the public imagination in terms of how violence, especially political violence, is covered in the media in terms of the amount of reportage given to violence that makes a country seem threatened versus violence in a place where violence is “expected” or “normal”- violence that is far enough away in mindset and/or in fact to be non-threatening. The response of certain European governments and the United States government to the outburst of protests in Tunisia and Egypt, while also of course being motivated by many other factors, seems expressive of this idea (particularly France’s muted reaction to the protests against the Tunisian regime, and the US government’s careful handling of its position on Mubarak, given US interests in the region. Schmitt’s concepts are therefore still completely relevant, challenging and useful for both questioning one’s own beliefs and in formulating one’s objections to his own. I could go on, and there is tons more to talk about in the major concepts that he discusses, but this is obscenely long already, and you probably get the idea. Honestly, I’m still not sure I understand all of it, but it’s a good feeling. Like I could keep coming back for more, if only to be all, “how you be so crazypants???” I don’t regret the investment of my time- I don’t think anyone interested in these issues will either. *Sooo… the big reveal here is that he was also anti-Versailles because he was a big fat ole’ Nazi. Like, to the extent that he refused denazification stuff after the war and wasn’t able to really teach again. To the extent that he is STILL defending German actions in both World War I and by implicit extension WWII in this text. There’s a whole section about the “war guilt” clause and how it doesn’t make sense in the juridical framework, and a whole ridiculously stupid thing about why Belgian neutrality wasn’t valid anyway so Germany didn’t do anything wrong, and why Poland wasn’t really a state, so dividing up is totally cool because one has to qualify for “statehood” for something to be done that justifies war. There’s a lot of fascinating ideas in here, so I don’t say this to warn you off of it necessarily, but I don’t want people to feel betrayed and feeling like they got sucked in by Nazi propaganda and I didn’t warn them or something. So, now you know. Make your own call.

Review # 2 was written on 2015-03-04 00:00:00 Paul Dold arguably schmitt's best work. he dissects the greek work "nomos" and explains that it has a tripartite meaning. it refers to the three conditions of possibility for having the rule of law: the acquisition of land, the cultivation of that land, and the distribution of profits from the land...all rooted in a people that thereby becomes sovereign over that land. as peoples began to establish their sovereignty, and thus develop the legitimacy needed to draft laws to bind themselves, they became aware of their positions in the world with respect to other peoples. the first major civilizations, eventually, fought with each other - "wars of annihilation," he called them, because there was a still inchoate understanding of the entire world order of peoples...the "nomos" of the earth. as peoples developed and we finally got to the era of nation-states, different peoples learned how to at least respect their enemies, even if they were enemies. we even got so far as to start collaborating on some international principles. but we never got a fully coherent "international law," in his view. one of the reasons why? well, eventually the nice and neat nation-state world order (which obviously didn't apply to the entire world) started to break down as some spaces were used as spaces of "exception" - the gulags, the concentration camps, etc. these spaces has people on land, but those people were not "sovereign" over their land. they were criminals, or refugees, and were living in spaces that nations relied on but that didn't fit into the nation-state model, for all the obvious reasons. so schmitt realized that his ideal nomos of the earth was already breaking down...and that with the rise of spheres of influence coming from the US and USSR, we were in danger of slipping back into an era of empires and wars of annihilation. sound familiar?