共查询到20条相似文献,搜索用时 31 毫秒
1.
This article, which should not in any sense be taken to reflect the views of the Editorial Board of Law and Critique, argues that the political project of critical legal studies in England remains overwhelmingly in the future. Lacking academic
identity, political purpose and ethical conviction, critical legal scholarship in England has been too insecure in its institutional
place and too unconscious of its individual and collective desires to resist absorption into the institution. Critical legal
studies – as distinct from feminist legal studies, gay and lesbian studies or critical race theory –has tended to teach and
so reproduce the core curriculum in a passive and negative mode. Resistant, ostensibly for historical and political reasons,
to self-criticism and indeed to self-reflection upon their institutional practices, critical scholars have ended up repeating
the law that they came to critique and overcome.
This revised version was published online in July 2006 with corrections to the Cover Date. 相似文献
2.
Andreja Zevnik 《Law and Critique》2011,22(2):155-169
The Guantanamo detention facility, from its early days an emblem for human rights abuses, is a space where legal subjectivity
of detainees is contested or even permanently suspended. This essay argues that we should look for the underlying rationale
for this treatment not in the politicians who pursue intelligence, security, and strategic interest, or indeed even revenge
for 9/11, but rather in the logic—or the ontology—that drives the present political and legal system. This is not to say,
of course, that politicians play no role, or that they are mere ‘victims’ of social and political power relations—far from
it; yet, it has to be acknowledged that the foundational assumptions on which the existing system operates create conditions
of possibility for such degrading actions and exclusionary politics. This paper will first explore these philosophical foundations
that enable such an understanding of exclusionary legal subjectivity as we see practiced in Guantanamo, amongst other places;
secondly, it will search for an alternative logic of legal subjectivity as a ‘foundation’ for rights. Gilles Deleuze’s notion
of ‘becoming’ as a potentially facilitative practice for an ‘open’ notion of legal subjectivity, as well as Alain Badiou’s
account of ethics and evil, which points to a more ‘inclusive’ yet ‘situational’ understanding of human rights, will prove
particularly useful here. 相似文献
3.
Unification of legal rules in Europe is not a new phenomenon. However, nowadays, Europe is still an area with many different
jurisdictions. This paper studies the process of unification of legal rules in the European Union within a non-cooperative
game-theoretical framework. This paper contributes to the understanding of the process by concentrating on the role of the
European Commission.
In the law-and-economics literature, it is argued that national legal rules will converge more or less spontaneously through
the works of legislators and judges. But legal convergence in the European Union is not inevitable: preferences toward legal
rules differ across nation-states; substituting a legal system for another one is costly; a coordination problem may arise.
We first study the interactions of two nation-states who choose non-cooperatively their legal rules. We shall argue that the
action of the Commission is, at first sight, likely to eliminate the coordination problem (under certain conditions). Two
factors are at work. First, the Commission has a certain expertise which enables it to propose new and perhaps more efficient
rules (so that the choice of unification does not reduce to select a particular nation-state legal system). Second, the Commission
may use a system of fines that induces nation-states to abide by its rules (once these rules are adopted by nation-states).
Next, we refine our first model: the process of legal unification is viewed as a game where nation-states choose the game
that they will play. They choose if they will try to reach an agreement without resorting to the actions of the Commission,
or if they will play the game implicitely proposed by the Commission. This captures more precisely the action of the Commission,
its ‘right of initiative’’, the publication of proposals in ‘green’’ or ‘white papers’’. In this second model, a coordination
problem may arise.
JEL Classification C72 · K00 相似文献
4.
Jeanne L. Schroeder 《Law and Critique》2007,18(1):117-142
H.L.A. Hart’s jurisprudence seems antithetical to Jacques Lacan’s psychoanalysis. Professor Schroeder argues that, in fact,
Hart’s concept of law has surprising similarities to Lacan’s ‘discourse of the Master’. Both reject a command theory of law:
subjects do not obey law out of fear. Moreover, both insist that the authority of law is completely independent from its content.
Anyone seeking to develop a psychoanalytically sophisticated critical legal theory should reconsider Hart. As insightful as
his concept of the symbolic is, Lacan has no expertise in legal systems and does not discuss positive law per se. Although he posited a theory of ethics in his Seventh Seminar and the seeds of a jurisprudence are implicit within his theory,
he offers no account of legal right, justice or what Hart misleadingly calls ‘morality’. A Lacanian jurisprudence must, therefore,
be supplemented by other sources.
Moreover, legal positivists should not dismiss psychoanalysis. As insightful as Hart’s jurisprudence is, his theories of legal
subjectivity and linguistics are simplistic and his concept of law too narrow. He describes only one aspect of legal experience:
obedience to law. He ignores what most legal actors do: Hart’s concept of law excludes the practice of law. Although Lacan’s ‘master’s discourse’ surprisingly parallels Hart’s jurisprudence, Lacan does not restrict the symbolic
to the master’s discourse. It requires three other ‘discourses’. Lacan, therefore, supplements Hart. Specifically, Lacan’s
fourth discourse describes the excluded practice of law and provides the mechanism by which ‘morality’ can critique law.
相似文献
Jeanne L. SchroederEmail: |
5.
Lori Beaman-Hall 《Critical Criminology》1996,7(1):53-74
Beginning with the idea of law as discourse, this essay examines the ways in which legal method is gendered. Texts, such as
affidavits and court forms, and local ‘mundane’ practices are part of the production and affirmation of the law as a producer
of truth. A possible methodology for exploring legal method, ‘legal ethnography,’ is introduced as a means by which wemight
explicate how legal method works to support and reify legal discourse, in the process silencing the voices of women. The essay
also explores how legal method comes to be accepted as a ‘tool of the trade’ by lawyers, who then use it to translate the
primary narrative of the client into a cause of action that is comprehensible to lawyers, judges, and other actors in the
legal system. Finally, the limitations of the proposed methodology are considered. 相似文献
6.
Law and Philosophy - In Ignorance of Law, Doug Husak defends a version of legal moralism on which ‘we should recognize a presumption that the criminal law should…be based, on conform... 相似文献
7.
In legal academia it is highly controversial how to beoriginal in legal research. This article will try tomaintain an attitude of tolerance in not promoting or discreditingone particular methodology. Instead, it will identify four differentways of being original. Perhaps the most commonapproach is to deal with micro-legal questions.Many legal academics also pursue research in macro-legalquestions. Less common but growing is the importanceof scientific legal research and research in non-legaltopics. 相似文献
8.
Michael Plaxton 《Law and Philosophy》2011,30(1):77-103
Jeremy Waldron argued that the government lawyers responsible for the ‘torture memos’ acted unprofessionally by undermining
the prohibition on torture. He did so partly on the basis that that the torture prohibition represents a ‘legal archetype’
which cannot be undermined without doing considerable harm to large bodies of law. This paper argues that, however much intuitive
appeal Waldron’s archetype-based analysis may have, its force is inherently limited. This is so for two reasons. First, the
claim that the torture prohibition is an archetype for non-brutality can only make a meaningful difference to the integrity
of the legal order insofar as ‘brutality’ is understood widely. Waldron, though, reads ‘brutality’ in a narrow fashion. Second,
and more importantly, the claim that archetypes are uniquely important to legal reasoning and the legal order is deeply problematic. 相似文献
9.
Marcel Danesi 《International Journal for the Semiotics of Law》2012,25(1):95-106
Work on the relation between figurative language and the law is a fairly recent trend, within legal discourse studies, linguistics,
and semiotics. The work in conceptual metaphor theory, for example, is starting to unpack the underlying metaphorical and
metonymic structure of legal language, producing some new and important insights into the nature of this language. Missing
from this emerging line of inquiry are the views of the Neapolitan philosopher Giambattista Vico, who was the first to understand
the power of figurative language in the creation of symbolic systems, like language and the law. His tripartite evolutionary
model of language shows that there is not one language of the law, but three “languages.” By integrating Vico’s model with
the work in conceptual metaphor theory it will be possible to penetrate the underlying conceptual structure of legal discourse
and thus lead to a more insightful science of this discourse. 相似文献
10.
Angelika Schade 《European Journal for Education Law and Policy》2000,4(1):35-39
There has been an “upgrading” of the regional level in the European policy process which also has implications for educational
policy and administration. At the same time federalism has become a model not only for nation states but also for the construction
of Europe. While regionalism and federalism has attracted more and more scholarly attention there has been a neglect of the
implications for the educational field. The article starts by looking for models of regionalisation and federalisation as
a legal and political technique of conciliating between the different levels in education.
This revised version was published online in August 2006 with corrections to the Cover Date. 相似文献
11.
Ideas about the role of fathers in the separated family havechanged over the last few decades. The prevalent legal constructof co-parenting implies that children should beable to maintain contact with a non-resident parent, usuallythe father, if they wish, except in cases where there has beenabuse or violence. Research in several disciplines has soughtto explain the processes of contact by examining the behaviourof separated fathers, their relationships within the family,and the separated family as a whole. Quantitative studies haveexplored levels of involvement, the fatherchild relationshipand the inter-parental relationship as factors affecting childrensoutcomes, while an expanding body of qualitative work has soughtto map the practice of co-parenting through identifying thediversity of separated parenthood and the perspectives of non-residentfathers in particular. The contributions of these diverse approachesto current debates on non-resident fathers are reviewed in thisarticle. 相似文献
12.
Thomas Naylor 《Crime, Law and Social Change》2010,53(2):131-158
In recent decades prices of high-end “colored gemstones” (trade jargon for precious stones other than diamonds), like almost
all “collectibles,” have risen dramatically. Demand has been spreading to economic classes formerly excluded at the same time
the supply of high-quality material from natural sources falls, leading to constant searches (that may take on the character
of gold-rushes) for as yet undiscovered sites. While no doubt criminogenic factors have always existed within the gemstone
business, periods of rapid price rise mean stronger temptation for illegal activities. The potential list of economic offenses,
civil, regulatory and criminal, associated with the gemstones business includes: illegal mining, environmental offenses, bribery,
gun-running, smuggling, “terrorist”(i.e. insurgent) financing, commercial fraud, mining-share swindles, money laundering and,
not least, simple theft along with recycling stolen goods. This paper represents an attempt to understand the criminogenic
factors in light of the history and current structures of the business. It fits the gemstone trade into a commercial, geo-strategic
and sociological matrix, the three often interacting in mutually reinforcing ways. It asks whether, given the incentives and
opportunities for illicit activity, relying primarily on industry self-regulation makes sense. But it also questions whether
the international regulatory regime now in place for diamonds can be applied to the far more diffuse supply-side conditions
of the colored gemstone market. Methodologically, the paper is a research essay in the political economy of clandestine international
economic activity, with particular focus on its historical, geo-strategic and sociological context rather than a more narrow,
traditional criminological study. The second may work well enough when the activity under investigation is a crime per se,
as with studies of illegal drugs. However when the activity is inherently legal, but conducted illegally, it is essential
to understand thoroughly the nature and operation of the legal business to make sense of the illegal. The illegal is buried
in and works concurrently with the legal, not in the narrow sense of having the legal as cover, but in a more profound sense
of the legal and the illegal sharing attitudes and supporting institutions. The paper is divided into three parts. The first,
“Under the Rainbow,”examines the shady side of gemstone mining in a geo-political context. The second, “In the Eye of the
Beholder,” looks at fraud in cutting and polishing of rough gemstones into finished gems. The third, “Hot Rocks, Cold Cash,”
focuses on illicit activity in the retail jewelry trade. 相似文献
13.
Gary Chartier 《Law and Philosophy》2012,31(1):99-123
Many anarchists believe that a stateless society could and should feature laws. It might appear that, in so believing, they
are caught in a contradiction. The anarchist objects to the state because its authority does not rest on actual consent, and
using force to secure compliance with law in a stateless society seems objectionable for the same reason. Some people in a
stateless society will have consented to some laws or law-generating mechanisms and some to others – while some will have
consented to none. Someone’s obedience to a legal requirement could be justly enforceable absent the state, nonetheless, given
either her actual consent to the requirement or to a mechanism responsible for generating it or the coextensiveness of the
legal requirement with a moral requirement. And it could thus be just on the anarchist’s own terms to enforce a narrow range
of positive legal requirements even against outlaws who had declined to consent to them. 相似文献
14.
Richard L. Lippke 《Criminal Law and Philosophy》2008,2(3):259-268
Steven Tudor defends the mitigation of criminal sentences in cases in which offenders are genuinely remorseful for their crimes.
More than this, he takes the principle that such remorse-based sentence reductions are appropriate to be a ‘well-settled legal
principle’—so well settled, in fact, that ‘it is among those deep-seated commitments which can serve to test general theories
as much as they are tested by them’. However, his account of why remorse should reduce punishment is strongly philosophical
in character. He sets to one side the many practical difficulties in implementing such reductions in the real world of criminal
justice institutions so that he can focus on the question of whether a plausible account of sentencing can show that remorse
should mitigate punishment. I contend that Tudor’s defense of such reductions is unpersuasive in certain respects. Yet even
if it can be made more persuasive, I argue that the conditions that would have to be satisfied for remorse-based sentence
reductions to be justifiably implemented are so many and various that they would likely exceed our abilities to responsibly
grant them in real world legal contexts. I therefore claim that Tudor has failed to provide a defense of the ‘remorse principle’
that serves to explain or justify existing legal practices.
相似文献
Richard L. LippkeEmail: |
15.
This paper intends to explore the impact of Information technology(IT) development on the legal concept of signatures.To what extent and in which way does it impact on the legalconcept of signatures? This paper attempts toexamine this issue from an international and comparative perspective.It was found that IT development has different levels of impacton the legal concept of signatures in differentjurisdictions. In the Common Law system such as the UK and theUS, it does not change the legal concept of signatures.However, it does put the legal concept on such an importantposition. On the contrary, IT development changes the legalconcept of signatures in the Civil Law systemsuch as Germany and China. 相似文献
16.
In the domain of bail pending trial in China, there is a deep-cutting tension in bail pending trial between the practical
conditions in judicial practice and the legal conditions established by legal authorities. Based on the data and information
collected, this article investigates the conditions of bail pending trial in the aspects of rules and facts, and looks for
an institutional solution to reconstruct the system of bail pending trial that can realize the interaction between the facts
and rules.
__________
Translated from Susongfa Lilun Yu Shijian 诉讼法理论与实践 (Theory and Practice of Procedure Law), 2005, (9): 374–382 相似文献
17.
Julie Dickson 《Law and Philosophy》2011,30(4):477-497
In a series of powerful and challenging articles emerging since the mid-1990s, Brian Leiter has argued that certain theoretical
strains in contemporary legal philosophy are ‘epistemologically bankrupt’, in virtue of their reliance on misguided argumentative
devices: analysing concepts, such as the concepts of law and of authority; and doing so by appealing to intuitions regarding
the correct way to understand the concepts in question. In response to this state of affairs, Leiter advocates that jurisprudence
ought to attempt to catch-up with ‘naturalistic’ developments which have influenced the direction of other branches of philosophy
– such as epistemology, philosophy of mind, and moral philosophy – in the last few decades. This article offers a critical
analysis of some of Leiter’s proposals for what Jurisprudence should become, in light of his views on the relevance of naturalism
for this discipline. 相似文献
18.
Anna Grear 《Law and Critique》2006,17(2):171-199
This paper responds to the subversion of international human rights discourse by corporations. It begins by placing such subversion
in three contexts: the ascendance of human rights as the dominant discourse of contemporary moral and political life; the
emerging challenges to human rights posed by other-than-natural-human entities; and ambiguity in the relationship between
the legal subject and the human being. The author suggests that in order to resist corporate human rights distortion it is
important to reclaim the language of the human for the natural human being, despite complex philosophical and definitional
challenges attending the designation of the term ‘human.’ The author suggests that by re-attending to the implications of
human embodiment for human rights theory it might be possible to re-invigorate the protective potential of human rights for
vulnerable human beings and communities against powerful disembodied legal persons (corporations). 相似文献
19.
The economic landscape of Europe has undoubtedly been revolutionised over the last few years with the introduction of new
technology into business practices. But along with the inevitable benefits a series of antitrust issues have surfaced, which
have often disrupted the application of European Competition Law. This article will analyse and discuss the existing legal
framework and recent case law with respect to its capacity to pave the way for enterprises to embrace innovation, and argue
that – although the current legal system might be satisfactory to a certain extent – the European Commission should make adjustments
and promote the idea of self-regulation, if the EU is to be at the forefront of the online world.
This revised version was published online in August 2006 with corrections to the Cover Date. 相似文献
20.
Helen Stacy 《Critical Criminology》1995,6(2):63-71
The ability of Australia's indigenous people to create their own cultural identity and social reality is shaped profoundly
by the Australian legal system in various ways. The 1992Mabo decision of the Australian High Court ‘created’ a right to land tenure for Australia's indigenous people. This ‘right’ has
been further explicated by federal legislation in the post-Mabo era, in and around law. This essay analyzes the 1992Mabo decision in the context of governmental, judicial and wider social responses to indigenous issues. At several sites, it examines
‘indigenous rights’ discourse to illustrate the shifting meaning of ‘rights’ in legal currency in the indigenous debate. The
essay suggests that the ‘rights’ discourse of legal liberalism has not yet provided meaningful plurality in the recognition
of indigenous rights. 相似文献