Governing Civil Society in Cambodia: Implications of the NGO Law for the “Rule of Law”

Abstract

This article reviews the introduction of the 2015 Law on Associations and Non-governmental Organisations in Cambodia (“NGO Law”) from 2011–17 and explores its connection to the rule of law. After outlining the content, definitions and regulatory environment related to the NGO Law, it provides a commentary on its initial application, and examines its potential articulation with other legislation (such as defamation and libel, telecommunications law and land law). I argue that the NGO Law should be characterised as a carefully crafted piece of legislation, developed and defended over time by the ruling political party to increase control and intimidation by invoking adherence to the “rule of law”. Narratives of national security, terrorism, neutrality and cultural cohesion have been interwoven with new regulatory requirements to obfuscate overt political interference. The article argues that the NGO Law intersects with, and consolidates, the recent trend of the government’s use of legislation as a political tool to control and manipulate political opponents and government critics. This is not to deny that there are areas of civil society action and service provision that require greater government control via regulatory compliance. Nevertheless, the state’s attempts to tighten civil space are being met with resistance and “work around” strategies from the plethora of diverse organisations functioning in Cambodia.     

Mens rea,the Achilles’ Heel of Criminal Law

Abstract

The evolution of criminal law in Western legal systems is often portrayed as a path leading from objective to subjective notions of criminal responsibility. By examining the historical development of the notions of subjective responsibility, this article suggests that the function of a wrongdoer’s subjective mental state, in both its substantive and procedural aspect, as an element in the process of attributing criminal responsibility, remains much the same today as it was in antiquity. This is indicated by what subjectivity, as an essential condition of culpability (actus non facit reum nisi mens sit rea), is said to imply: the distinction between intentional and unintentional acts. Although the notions of intent and malice aforethought are attested to in various sources on ancient Athenian law, there are several kinds of cases in which the role played by these aspects—traditionally referred to as mens rea (“guilty mind”)—remain unsolved in contemporary jurisprudence and legal practice. Yet despite the difficulties of establishing facts in particularly complex criminal cases, setting the boundary between “intentional” and “unintentional” remains crucially important in determining criminal responsibility and thus in distinguishing the “licit” from the “illicit,” which is the very foundation of the rule of law.     

Natural Law in Dryden’s Translations of Chaucer and Boccaccio

This article examines the influence of natural law philosophy upon four of Dryden’s translations of Chaucer and Boccaccio published in his final collection Fables, Ancient and Modern (1700): “Sigismonda and Guiscardo”, “The Wife of Bath, her Tale”, “Palamon and Arcite” and “Cymon and Iphigenia”. Situating Dryden’s tales alongside the writings of his philosophical, political and literary contemporaries as well as their classical sources, it argues that Dryden’s distinctive choice of vocabulary and innovative amplifications of his originals constitute a subtly provocative interrogation of the use of natural law rhetoric within the seventeenth century.     

Does the Law and the Constitution of the Family Have to Change?

The law and constitution of the family has been targeted for transformation in recent years, leading most notably to the Supreme Court's decision in Obergefell v. Hodges, mandating same-sex marriage as a matter of constitutional law. In this essay I undertake a thought experiment, asking how advocates of traditional marriage ought to want the law of marriage to change in light of this development. I begin by reviewing the argument for legal change sketched by Aquinas and then applying it to developments concerning marriage in modern America. Next I sketch the natural-law argument on behalf of traditional marriage. Finally, I turn to the case of Michael H. v. Gerald D., in which the Supreme Court upheld a statutory reiteration of the common-law presumption that the husband of the mother is the father of her child, against a challenge from the biological father, suggesting that this case, long admired by conservatives, needs to be reconsidered—and that the dissent in the recent Indian Adoption Case recognizing a constitutional right of biological parents might prove useful to the restoration of marriage law.     

The Reagan “Mandate,” Public Law and the Ethics of Policy Change

The development of post-election polling techniques makes it possible to examine the nature of electoral mandates more precisely, and therefore to compare them with the mandate claims of winners. On that basis, we can more accurately assess the limits of the “administrative presidency” in individual cases. This article first summarizes the evidence regarding the 1980 Reagan mandate, and then proceeds to describe prominent cases in which his administration tried (with uneven success) to reverse or greatly re-orient purported statutory intent. Finally, it sketches some propositions regarding the appropriate limits of policy change in the absence of changes in organic statutes, and evaluates the cases discussed in light of these propositions, suggesting that a legitimate part of executive discretion revolves around how to reach statutory goals but not whether to pursue them. It concludes that the limits of what has to be permissible for effective operation of the system are probably broader than critics of any particular president's policy positions may prefer to see.     

The Figure of Man and the Territorialisation of Justice in ‘Enlightenment’ Natural Law: Pufendorf and Vattel

Discussions of early modern philosophical anthropology in postcolonial studies often treat it as tied to Eurocentric conceptions of civilisational supremacism and to the ideologies of imperialism and colonialism served by these conceptions. In discussing the conceptions of man contained in two key early modern doctrines of the law of nature and nations – those of Samuel Pufendorf and Emer de Vattel – this paper casts a sceptical eye on the postcolonial accounts. The anthropologies deployed by Pufendorf and Vattel relate not to European imperialism and colonialism but to intra-European problems associated with the formation of territorial states and the bellicose relations between them.     

Thailand’s Traditional Trinity and the Rule of Law: Can They Coexist?

Abstract

Thailand has seen considerable progress in the rule of law since the seminal 1997 constitution. Yet persistent political instability suggests that as yet the country does not think of the rule of law as binding. What is likely to happen in Thailand with the rule of law, and with governance generally? The argument advanced here is that rule of law principles must contend with the realisation that the traditional Thai trinity – nation, religion and king – has become an inviolable state ideology. Political actors, often aligned with the monarchy, have been using each element of the trinity to undermine both rule of law principles and democratic institutions. Now that long-serving monarch King Bhumibol (Rama IX) has been succeeded by his son King Varijalongkorn, it seems an appropriate time to examine current battles about the meaning of the rule of law and broader struggles for control between elites and popular groups based on competing visions for the state – a problem not only in Thailand but in the region as a whole.     

Laying Down the Law? Interest Group Influence on State Adoption of Animal Cruelty Felony Laws

Since the late 1960s, the number and types of organized interest groups working at the state level have increased dramatically, but research shows that traditional organized interest groups, such as business and labor unions, are still the most influential in state policymaking ( Thomas and Hrebenar 1996 ). Less is known, however, about the influence of non‐economically focused interest groups in the state policy process. Using pooled cross‐sectional data from the American states, I explore the effect that nontraditional organized interests can have on state policy. Specifically, I examine the influence of the Humane Society of the United States on state adoption of animal cruelty felony laws. Although the Humane Society is not one of the traditional groups expected to have a significant influence in state policymaking, my results suggest that it has played a significant role. However, I also find that the Humane Society's influence on the stringency of these laws is less pronounced.     

Unsociable Sociability and the Crisis of Natural Law: Michael Hissmann (1752–1784) on the State of Nature

Summary

This article studies the impact of the debate about human sociability on the crisis of natural law in the later eighteenth century examining the Untersuchungen über den Stand der Natur of 1780 by the Göttingen scholar Michael Hissmann. It makes the case that this crisis ensued from Rousseau's Discours sur l‘inégalité and a revival of neo-Epicurean trends in moral philosophy more generally. The sociability debate revolved around the question to what extent society was natural or artificial to man. This had important implications for the problem of whether distinctions between right and wrong or just and unjust were natural and inborn, or had developed at a much later stage of mankind's history, reflecting merely the respective needs and utility of different societies and cultures. Hissmann's essay summarises this European debate concisely. His point of departure is Rousseauian premises, yet his political conclusions turn Rousseau upside down. Here, Hissmann's essay opens up several questions regarding the allegedly radical political character of one-substance theories in philosophy.     

A Review of “The Line Through the Heart: Natural Law as Fact,Theory, and Sign of Contradiction”

Abstract

Responding to Samuel Huntington's argument in Who Are We? The Challenges to America's National Identity, this article explores the problematic character of American national identity. While Huntington presents himself as trying to conserve a traditional American identity based on both political creed and Anglo-Protestant culture, I contend that America's founding political theory and its philosophic sources are ambiguous on the question of culture and national identity. The Declaration of Independence and the social contract theories that helped inform it seem to invite a kind of cosmopolitan commitment to a creedal identity while at the same time leaving open the possibility of a more exclusive cultural identity. In the end, this ambiguity works to undermine a public sense that the political order should try to conserve a particular culture, a tendency that is furthered by a democratic regime's natural inclinations toward universalism and egalitarianism. It seems, then, that the problem of the preservation of American cultural identity is rooted in the very culture that Huntington wishes to preserve.     

‘More Hateful because of its Hypocrisy’: Indians,Britain and Canadian Law in the Komagata Maru Incident of 1914

Recent remembrance and memorialisation of the Komagata Maru incident of 1914 has neglected the global and imperial implications of the incident, as well as the role that direct actions by the Indian passengers and Indians in Vancouver took against Canada’s discriminatory law. While the legal loss the passengers suffered could be regarded as simply tragic, the implications for the British Empire behind the Komagata Maru incident are more complex. More than just a legal battle between would-be Indian migrants and the Vancouver immigration authorities, the incident is a highly visible clash of two different understandings of the British imperial legal system. In contrast to any view that imperial harmony and the rights of all its subjects should supersede local concerns within the empire, Canadian immigration and legal officials instead viewed their rights as a self-governing dominion to make and pass their own laws (particularly around areas of racial desirability) as more important than issues of imperial membership, loyalty or harmony. The British government’s decision, in turn, not to contradict Canada’s eventual ruling against the Komagata Maru passengers and the decision to deport them, exposed the legal hierarchies of supposed imperial belonging, citizenship and ‘British liberty’ in the empire at a critical moment in the early twentieth century. What the incident highlighted, then, was an increasing legal distinction between settler colonies and colonies of exploitation within the empire.     

Abolition and Imperial Law, 1790–1820

Historians have represented the movement for the abolition of the slave trade as a turning point in international law, either characterising the formation of mixed commissions to adjudicate slave ship captures as elements of early human rights law or interpreting the treaty regime supporting the ban on the slave trade as marking a decisive shift towards positivism in international law. A closer look at the legal history of abolition suggests that such perspectives omit an important dimension: the ties between abolition and imperial legal consolidation. In exploring such ties, the article first examines prize law and its direct and indirect influence on calls for intra-imperial regulation of the slave trade, especially its effective criminalisation. Across the empire, efforts to ban the slave trade reflected and reinforced pressures to strengthen imperial legal authority by regulating and restricting planter legal prerogatives.     

Exile in a Land of Exiles: The Early History of Criminal Transportation Law in New South Wales, 1788–1809

This article considers the peculiar application of English criminal transportation law in the ‘convict colony’ of New South Wales during its foundation years. It demonstrates, first, that transportation was not intended to be within the sentencing jurisdiction of the New South Wales Court, but that it was adopted and practised nonetheless, with confused and incongruous results. In particular, substantial challenges emerged in applying colonial or local sentences to a population that was largely already under sentence of transportation. The result was a raft of innovations and inconsistencies that highlighted the legal and practical problems of performing exile in a land of exiles.     

Tobler’s Law in a Multivariate World

Tobler’s first law of geography is widely recognized as reflecting broad empirical realities in geography. Its key concepts of “near” and “related” are intuitive in a univariate setting. However, when moving to the joint consideration of spatial patterns among multiple variables, the combination of attribute similarity and geographical similarity that underlies the concept of spatial autocorrelation is much harder to deal with. This article uses the notion of distance in multiattribute space to explore and visualize the connection between “near” and “related” in a multivariate context. We approach this from a global, local, and regional perspective. We outline a number of ways to combine different visualization techniques and introduce a new local neighbor match test for multivariate local clusters. We illustrate the methods by means of Guerry’s classic data set on moral statistics in 1833 France.