Law 558 - Political Crimes and Legal Systems
Khaled M. Abou El Fadl
J.D. University of Pennsylvania, 1989
Ph.D. Islamic Studies, Princeton, 1999
What is a political crime? Is there a meaningful distinction between a political as opposed to a non-political or common crime? And what is the relationship of political crimes to terrorism? This course is a systematic investigation into the concept of political crimes and the distinctive dynamics and tensions in existence between legal systems and political offenses. A very significant component of this course will be to analyze the relationship of political crimes to terrorism and of terrorism to political crimes. We will start with a historical overview of the different kind of acts that have earned the label of political crimes such as: sedition, treason, subversion, assassination, and even piracy, banditry, or brigandage. Our historical survey will include tracing the development of the doctrine of political crimes as offenses committed against God, the Sovereign or Majesty to its later reformulations and transformations into an ethical right to rebel or a right to resist oppression and domination. This also means tracing the doctrine from its early manifestations in Roman Law to its reinvention through the French Revolution, and the so-called continental and Anglo-American age of rebellion, to the reconstruction and mutation of the doctrine in the ages of decolonialization and then, ultimately, the current war on terror. In this course, of particular interest is the theoretical coherence of the idea of political crimes and whether these offenses could coherently be distinguished from common criminal behavior. Significantly, this course will focus on the challenges that the concept of political offenses poses to the legitimacy and authority of legal systems and the ways that legal systems have responded to violent challenges to their monopoly over the use of violence including situations of widespread breakdowns such as revolutions or civil wars. In this context, we will pay special attention to the various attempts to develop legal definitions of political offenses, especially in international law including extradition treaties, and to jurisprudential debates on the relationship of political crimes to terrorism, self-determination, national liberation, asylum, and human rights. Part of our investigation will include studying the various theories proposed as to why people commit politically motivated offenses, most notably terrorism or what some have called the pathologies of terrorism, and the various ways that domestic and international legal systems have responded to such offenses whether through accommodation (such as exceptions to extradition treaties, political asylum, grants of amnesty, or executive immunities from prosecution) or through resistance and suppression (such as anti-terrorism legislation, sedition and subversion laws, or extra-legal measures).
I should emphasize that this is not a national security course or a course on the laws of war or on international humanitarian law. In examining the international responses to political offenses, we will have an occasion to examine several international instruments, such as the hijacking convention and the convention for the protection of diplomats, which seek to combat specific acts of terrorism. And we will study several models of anti-terrorism legislation from a number of countries. However, this seminar is primarily for those who are interested in foundational jurisprudential questions of legality and legitimacy. It is for students who wish to wrestle with the very difficult questions of the difference between soldiers and revolutionaries, freedom fighters and terrorists, aggressors and liberators, dissidents and criminals, patriots and subversives, and what role should the law play in making these distinctions.
Attendance and participation is mandatory.
Substantial writing requirement could be fulfilled in this seminar.