Roozbeh (Rudy) B. Baker

Intelektualci i politika

Roozbeh (Rudy) B. Baker et al. — Mon, 07 Nov 2011 12:21:30 PST

Radoznalost, naša najdublja unutrašnja intelektualna potreba i interes, proizvela je ono što danas nazivamo naukom. Ovaj rad bavi se problemom međuodnosa politike i nauke. Nema potrebe raspravljati ko je stariji, već je važnije fokusirati se na pitanje mere u kojoj nauka može uticati na politički proces. Može li ona doprineti ispravnom donošenju odluka, i, ukoliko može, u kojoj meri? Donošenje odluka često ima prefiks političko. Može li intelektualna klasa, koja predstavlja svet nauke, uticati na političko donošenje odluka? Kao što je C. Wright Mills ispravno primetio, ukoliko je intelektualac čovek od znanja, neće optirati ni za jednu posebnu političku struju. Politika intelektualca je, dakle, politika istine. Ima li intelektualac legitimno pravo (ili ne) da bude aktivan u praktičnoj politici? Treba li se ogromni korpus znanja koje je nauka prikupila u prethodnim stolećima zauzdati u cilju uređivanja i upravljanja društvom? Možda, ali paradoks koji se suprotstavlja ovoj tvrdnji je gruba stvarnost koja govori kako korpus znanja koje je proizvela nauka u prethodnim stolećima nije bio u stanju da do današnjeg dana speči eskalaciju nasilja i razvoj dekadencije kroz istoriju. To je jedan od najvećih paradoksa civilizovanog društva i ključno pitanje koje će ovaj rad pokušati da razreši.

Novi institucionalizam i međunarodni odnosi: korak napred

Roozbeh (Rudy) B. Baker — Wed, 26 Oct 2011 04:04:40 PDT

Revolucija koju je šezdesetih godina prošlog veka doneo biheviorizam, i koja je u potpunosti prožela društvene nauke, posebno u oblasti političkih nauka i sociologije, dovela je do nezainteresovanosti za proučavanje institucija i njihove strukture. Osamdesetih godina javio se, pak, novi pokret u društvenim naukama, pokret koji je ukazao na značaj centralnosti institucionalne analize u proučavanju politike i društva, i obnovio izučavanje institucija kao ključne varijable. Nazvan Novi institucionalizam, ovaj pokret u velikoj meri uticao je na usmerenje istraživanja u političkim naukama i sociologiji. Nažalost, mnogi teoretičari i praktičari međunarodnih odnosa su ignorisali Novi institucionalizam, iako je on došao do novih saznanja i proizveo koristan skup metoda koji bi u svakom smislu mogli biti od značaja za teoriju međunarodnih odnosa.

Customary International Law in the 21st Century: Old Challenges and New Debates

Roozbeh (Rudy) B. Baker — Mon, 22 Jun 2009 14:05:18 PDT

This Article will survey the new scholarship that has emerged in international law to challenge the two traditional sources of customary norms, state practice and opinio juris. With the recent growth, in the international system, of self-contained international criminal tribunals, new challenges facing international law have emerged. Institutionally structured as self-contained legal regimes, international legal tribunals such as the ICTY, ICTR, and now the ICC have nevertheless contributed to a new paradigm within international law. The jurisprudence of these international criminal tribunals, on a wide range of international legal questions, has slowly begun to be elevated into norms of customary international law. Given this fact then, the debate over whether consistent state practice and opinio juris are the only building blocks of customary international law is over, because clearly, for better or for worse, they no longer are. They new question, the new debate, will be over what the implications of this shift in the traditional building blocks of customary international law are, not only on the international system as a whole, but also, surprisingly perhaps, on national (domestic nation state) legal systems as well. The domestic law angle is key, for in the past few years, the jurisprudence of these international tribunals has, aside from finding its way into customary international law, also begun to seep into the domestic (mainly criminal) law of several countries.

Towards a New Transitional Justice Model: Assessing the Serbian Case

Roozbeh (Rudy) B. Baker — Mon, 22 Jun 2009 13:53:40 PDT

Given the “third wave” of democratic development and entrenchment that has taken hold around the world within the past three decades, the topic of how these transitioning societies cope with the legacy of atrocity and criminality that often accompany authoritarian rule has taken on a fresh salience. The structural, ethical, legal, and political problems faced during such transitions have become the topic of a burgeoning “transitional justice” sub-field within the fields of Law and Political Science. This Article will survey key episodes of transitional justice in various countries since the 1970s, and then apply the lessons gleaned to the transition of Serbia during the first five years following the deposition of authoritarian ruler Slobodan Milošević in October 2000. This Article will argue for a new transitional justice model which holds political stability is a key variable. The outcome of the transitional justice process a country undertakes on its political stability needs to be taken into account when fashioning said process. There needs to exist some sort of common understanding between the various parties involved as to the procedures and / or extent to which transitional justice will be undertaken. This argument takes away nothing from those who would cite to necessity of bringing to accountability those who have committed past crimes, but rather argues that this noble concern over “justice” needs to be equally balanced with an understanding of the political realities facing newly transitioning states. As the Serbian case of transitional justice shall demonstrate, if this balance between the need for justice and the desire for stability is not met, then the result shall be a situation where both justice and stability suffer.

Universal Jurisdiction and the Case of Belgium: A Critical Assessment

Roozbeh (Rudy) B. Baker — Sun, 15 Mar 2009 23:58:08 PDT

Praised in some quarters as a useful tool for bringing criminal perpetrators to justice, criticized by others as a threat to state sovereignty, universal jurisdiction has certainly emerged as a heated topic within international criminal law. In 1993, the Kingdom of Belgium enacted a domestic statute, the Loi du 16 Juin, which codified (in domestic Belgian law) the use and application of universal jurisdiction (for international crimes) in Belgian courts. The Statute, which went through two major revisions in February 1999 and April 2003, granted Belgian courts jurisdiction over war crimes, crimes against humanity, and genocide, regardless of where in the world they took place. While the idea of universal jurisdiction within international law is not a new one, it has been argued, with justification, that Belgium’s universal jurisdiction statute was the most extensive and far reaching attempt to date of a domestic state within the international system sanctioning the wide-scale use of its courts for trying international crimes. This Article presents a detailed survey on the history and process of universal jurisdiction as practiced in Belgium from 1993 to the present. Through this detailed presentation, this Article concludes with a much more sobering and critical analysis on Belgium’s universal jurisdiction statute than that which has been provided to date by other legal scholars. This Article argues that, far from presenting a powerful tool for justice, Belgium’s universal jurisdiction statute violated fundamental norms of not only international law, but domestic Belgian law as well. In correcting some of these more egregious violations, the new Belgian universal jurisdiction scheme that was created by the August 2003 annulment of the country’s specialized statute (and subsequent incorporation of limited provisions for universal jurisdiction into the Belgian Code Pénal and Titre préliminaire du Code de procédure pénale) represents a step forwards, not backwards, for fundamental justice.

Balancing Competing Priorities: Affirmative Action in the United States and Canada

Roozbeh (Rudy) B. Baker — Wed, 03 Sep 2008 17:40:58 PDT

This Article shall present a detailed analysis of Equality Rights in the United States and Canada, and their relationship to race based government affirmative action programs as practiced in those two countries. At its most basic level, Equality Rights can be defined generally as the idea that a government must not discriminate against its citizens (i.e. treat some of them differently from others). Yet given this general definition of Equality Rights, how can one reconcile the concept with that of race based affirmative action programs? As this Article shall demonstrate, via its survey of the radically opposed American and Canadian national approaches, the promotion of Equality Rights is inconsistent with the support of formerly disenfranchised minority groups via ameliorative race based government affirmative action programs. Both national approaches, American and Canadian, swing between opposite ends of the pendulum. The American approach towards Equality Rights, in looking to the concept of equal treatment (for all citizens) as its point of departure, results in a piecemeal approach (in its affirmative action programs). On the other hand, the Canadian approach looking to the idea of the amelioration of past discrimination (at the expense of a formalistic definition of Equality Rights as constituting equal treatment under the law) as its point of departure results in a much more favorable judicially constructed framework for government affirmative action programs. Just as with the American approach however, there is a tradeoff involved, as the Canadian approach results in an environment much less inclined to take seriously dissenting arguments that such programs result in an environment where the state, in looking to assist formerly disenfranchised minorities, ends up doing so at the cost of treating its citizens unequally.

Racial Formation in Quebec: A Legal Retospective

Roozbeh (Rudy) B. Baker — Mon, 01 Sep 2008 21:59:33 PDT

This Article shall use the experience of the Quebecois in Canada to survey the linkage between cultural formation and race in Quebecois racial identity, and then map out these linkages and their relations to the political and legal discourse that has emerged in Canada on the place of the Quebecois in the country. Cultural formation and racial formation are unmistakably linked. Specific social and linguistic separatism can over time crystallize into racial formation, especially if aided by official government recognition and legal codification. As this Article shall demonstrate, the verification of this idea can be clearly seen the experience of the Quebecois in Canada, for the formation of Quebecois racial identity could not have occurred without the participation of the Canadian government in the process.

Proportionality in the Criminal Law: The Differing American versus Canadian Approaches to Punishment

Roozbeh (Rudy) B. Baker — Mon, 15 Oct 2007 21:10:52 PDT

The focus of this Article shall be upon the Eighth Amendment of the United States Constitution and s. 12 of the Canadian Charter of Rights and Freedoms, both of which prohibit “cruel and unusual punishment”; and their effect on mandatory criminal sentencing (via penal statute) in the two countries. The Article shall begin by briefly explain the differences between the jurisdictional application of criminal justice in the United States and Canada. The Article will next present and explain the American Eighth Amendment approach to the constitutionality of mandatory criminal sentencing and contrast this to the Canadian s. 12 approach to the constitutionality of mandatory criminal sentencing. The contrasting of the two national approaches will underlie the main argument of the Article, namely that if one’s concern is the fair and proportionate application of justice, then the Canadian approach to reconciling the constitutional prohibition against “cruel and unusual punishment” and the application (through penal statute) of mandatory criminal sentencing is the superior one. The Article shall conclude with a discussion of the possible reasons for the differing national approaches to mandatory criminal sentencing.