Law against the Rule of Law: Assaulting Democracy

This article examines how authoritarian contenders use law to advance an agenda geared to exclusive state power in light of a paradigmatic case: the National Socialists’ takeover of the German state apparatus in spring 1933. This case highlights two ways in which an office holder is able to expand his power in an authoritarian fashion through legal dispositions. A conjunctural use of law for authoritarian purposes draws on legal statutes to undercut the political capacity of opponents and competitors, hollow out institutional checks, and crucially hamper civil freedoms. Taking advantage of constitutional provisions that make institutional subversion from within possible (‘constitutional Trojan horses’), a structural use of legal statutes reorders the power structure by reallocating decisional rights. In both cases, law serves as a weapon against the rule of law. These considerations raise the question of the standards by which we are to judge the legality of such acts. Contemporary instances of democratic backsliding are cases in point.     

法律原则适用与程序制度保障——以民事法为中心的分析

法律原则因为没有明确、具体的事实构成要件和法律效果而无法像法律规则那样为当事人提供行为准则,为法官提供裁判根据。适用法律原则处理个案纠纷就是法官以自己所“造”之法进行司法裁判,其适用困境的实质在于,以立法机关制定的(成文)法律规则为中心运行的司法制度(尤其是司法程序)难以为法官行使自由裁量权提供有效的正当性论证。在实体法、法律适用技术的范围内,以构建适用条件、适用规则,完善适用方法等方式来破解此困境,作用极为有限。重构司法程序制度,使当事人、社会能够以恰当的方式参与到具体的裁判过程以制约法官的裁量权,或许是解决此难题的可能途径。     

法律解释及其基本特征

在法治社会中 ,如果没有法律解释理论 ,仍可能形成新的专制。法律解释应是法官按照法律的规范意旨 ,运用法律思维方式 ,在法律适用过程中 ,对与案件相关的法律和事实的意义所作的阐明。它有三个基本特征 :法律解释是站在法律的立场上 ,对法律的意义所作出的有效力的解释 ,具有合法性特征 :法律解释具有法律的部分与整体的互动、法律与事实的互动的循环性特征 ;法律解释因把一般的法律个别化而具有创造性特征     

Don't Even Ask! A Two-Level Analysis of Government Lawsuits Against Citizen and Media Access Requestors

Access-to-information statutes are designed to empower the public and the media to scrutinize the government. In approximately three dozen cases decided since 1975, however, government entities used those statutes to sue citizens and media outlets that requested access to government information. The government lawsuits sought declaratory judgments as to the government's legal obligations under state open meetings and public records laws. This article analyzes the government lawsuits by exploring the social architecture they create. This social architecture is based on the idea that law not only settles individual disputes, but also defines power relationships among groups in society. The article suggests that government lawsuits against access requestors turn access law on its head and deprive citizens of the power over government granted to them by access statutes.     

The Traditionality of Statutes*

Abstract. The author begins by sketching the characteristics or elements of every tradition. Some reasons are then suggested for the propensity of so many authors to contrast statutes with other, allegedly more traditional kinds of law. However, it is argued that statutes are deeply embedded, along with customary and judge-made law, in the highly traditional practices of law and that this matters much more than is commonly suspected. The thesis being defended here is not merely that law includes traditions along with rules, principles, maxims, and so on, but rather that legal systems should be understood as traditions, albeit highly complex ones. Not only are ancient legal systems (the Talmudic, for example) held to be traditional; modem legal positive orders are viewed as being traditional too. Finally, the concept of “communities of interpretation” is applied to the contemporary posited statutes which are believed by many to be a distinguishing feature of modem legal systems.     

The Meat in the Sandwich: Welfare Labelling and the Governance of Meat‐chicken Production in Australia

This article critically examines the degree to which higher‐animal welfare label claims change animal welfare regulation and governance within intense meat‐chicken ('broiler') production in Australia. It argues that ethical labelling claims on food and other products can be seen as a ‘governance space’ in which various government, industry and civil society actors compete and collaborate for regulatory impact. It concludes that ethical labelling can act as a pathway for re‐embedding social concerns in the market, but only when it prompts changes that become enshrined in standard practice and possibly the law itself. Moreover, the changes wrought by ethical labelling are small and incremental. Nevertheless, labelling may create ongoing productive tension and ‘overflow’ that challenges the market to listen to and accommodate actors (including animals) on the margins to create ongoing incremental changes.     

论动物福利立法的限度及其定位——兼谈动物福利立法中动物的法律地位

从道德和道德法律化的角度看,给予动物福利其实就是科加人对动物的道德义务,而动物福利立法的实质便是把这种道德义务上升为法律义务,即实现动物道德的法律化。不过,动物并未就此获得法律主体地位,它只是一种"物格"弱于一般客体物的"准物"而已。由于道德法律化是有条件的,动物福利立法也应有限度,只有那些获得社会普遍认同和共同遵守的基本动物道德,才可通过立法程序上升为法律规范。对此,我们可用"利益关系分析法"和"利益层次分析法"来大致界定"基本动物道德"的范围;用自卫原则、对称原则、最少损害原则、分配正义原则以及补偿正义原则,来对动物福利立法进行较明确的定位,以妥善处理动物福利和人的利益的关系。     

Toward Rational Criminal HIV Exposure Laws

This article examines criminal HIV exposure statues that address undisclosed exposure through consensual sexual activity. Twenty-seven U.S. states have adopted some form of HIV exposure statute. Thirteen of these statutes specifically address exposure through sexual activity, while another eleven statutes could be applied to exposure through sexual activity, while another eleven statutes could be applied to exposure through consensual sexual interactions. Although the penalties for breach of these laws are often severe, the risk of actual harm posed by the many of the behaviors prescribed is minimal and in some cases virtually nonexistent. After an overview of the various types of U.S. criminal HIV exposure statutes and discussion of the risk of HIV transmission through the various sexual activities addressed in the laws, the authors highlight the tenuous relationship between proscribed activities and actual risk of virus transmission. The authors address this limitation in the law by offering a framework for the evaluation and construction of HIV exposure statutes that considers not only the intent of the HIV-positive actor but also the risk that his or her conduct poses to others.     

反对解释与法治的方法之途——回应范进学教授

针对范进学教授提出所有法律并不反对解释的观点,我认为法律解释的对象有三:一是事实,即通过解释赋予事实以法律意义;二是模糊不清的法律规定,即通过解释把不清楚的法律说清楚;三是对已做出的"法律"判断进行反思,对不符合法律思维的判断进行矫正。所有的法律解释都必须是根据法律的解释,这是法律解释的独断性要求。从法制原则上看,现行法律是解释的根据,而不是主要的解释对象。"法治反对解释的原则",反对的是对清晰的法律规定进行解释,并不是反对对事实以及判断的解释。法律适用是一个维护法制的概念,而法律解释的泛化或绝对化隐藏着很多瓦解法制的危险,其中最主要的是可能淡化法律的规范作用。依法办事是法治之途中最简便而有效的方法。     

我国行政诉讼全面审查制度再思考——法院对行政机关认定事实的态度分析

我国人民法院对行政机关认定事实采取怀疑或否定态度,对行政机关认定事实实行全面审查。英美法系国家法院对行政机关的事实认定采取尊重态度,对事实问题采用宽松的审查标准。大陆法系国家行政诉讼一般不区分事实问题和法律问题,都进行全面审查。我国应当重新思考人民法院的全面审查制度,对专业性和技术性强的行政案件,以及行政机关适用简易程序当场作出决定的案件,人民法院应当尊重行政机关对事实的认定。对一般案件事实,如果法律规定以具备某种性质为要件时,审查行政机关对事实性质的判断是否符合法律的规定。对于重大的或对当事人利益有重大影响的行政案件,进行全面审查。     

The court for sexual offences: perceptions of the perpetrators of sexual offences

This article explores the largely hereunto-ignored perceptions of the offenders within the specialist sex-courts in Bloemfontein, Free State, South Africa. Various factors potentially affecting such perceptions within this group of individuals are identified by way of theoretical orientation. Respondents were inclined to view the Court for Sexual Offences as biased in process and excessively punitive with regard to sentencing. The specialist sex-court was also perceived to be inefficient and slow. Female prosecutors were judged to be overly involved in cases to the extent that their objectivity was impaired. The need for additional research in various related areas is also explored.     

The invention of health law

By default, the courts are inventing health law. The law governing the American health system arises from an unruly mix of statutes, regulations, and judge-crafted doctrines conceived, in the main, without medical care in mind. Courts are ill-equipped to put order to this chaos, and until recently they have been disinclined to try. But political gridlock and popular ire over managed care have pushed them into the breach, and the Supreme Court has become a proactive health policy player. How might judges make sense of health law's disparate doctrinal standards? Scholars from diverse ideological starting points have converged toward a single answer: the law should look to deploy medical resources in a systematically rational manner, so as to maximize the benefits that every dollar buys. This answer bases the orderly development of health care law upon our ability to reach stable understandings, in myriad circumstances, of what welfare maximization requires. In this Article, I contend that this goal is not achievable. Scientific ignorance, cognitive limitations, and normative disagreements yield shifting, incomplete, and contradictory understandings of social welfare in the health sphere. The chaotic state of health care law today reflects this unruliness. In making systemic welfare maximization the lodestar for health law, we risk falling so far short of aspirations for reasoned decision making as to invite disillusion about the possibilities for any sort of rationality in this field. Accordingly, I urge that we define health law's aims more modestly, based on acknowledgement that its rationality is discontinuous across substantive contexts and changeable with time. This concession to human limits, I argue, opens the way to health policy that mediates wisely between our desire for public action to maximize the well being of the many and our intimate wishes to be treated noninstrumentally, as separate ends. I conclude with an effort to identify the goals of health law, so constructed, should pursue and to suggest how a strategy of accommodation among these goals might apply to a variety of legal controversies.     

中国古代判例法模式研究——以元清两朝为中心

中国古代判例法存在两种基本类型：成文法典下判例法与非成文法典下判例法。这两种类型的判例法存在不同的运作机制，但作为中国古代法律文化语境下的法律制度，两者亦有相同的地方。中国古代判例可以分为创制型判例、补充型判例和解释型判例；判例的作用可以分为作为判决的法律依据、作为法律适用的依据和作为新立法的依据三种；论证类型有严格类比推理与说理中高度伦理化说理两种；从适用特点上看有相应的逻辑体系，在适用时根据不同类型分别适用。     

From Loss of Services to Loss of Support: The Wrongful Death Statutes, the Origins of Modern Tort Law, and the Making of the Nineteenth-Century Family

The wrongful death statutes enacted in most states during the mid-nineteenth century have long represented a classic moment in the narrative of American legal history. Historians have not observed, however, that American wrongful death statutes amended the English act on which they were modeled to introduce a gender asymmetry peculiar to the United States. Led by New York, most American jurisdictions limited wrongful death actions to "the widow and next of kin" of the decedent, categories that did not include husbands of deceased wives. Thus, a wife could bring a wrongful death action for the death of her husband, but a husband could not bring a wrongful death action on his own behalf for the death of his wife.
The wrongful death statutes represent a heretofore unrecognized conjuncture of the beginnings of the modem law of torts with the nineteenth-century legal reconstruction of the family. The statutes mowed accident litigation away from an eighteenth-century model of masters suing for loss of the services of a servant, slave, wife, or child, toward the now more familiar model of suits for loss of wages and support. Moreover, the gender asymmetry of the statutes embodied and reproduced a new nineteenth-century conception of the family in which men worked as free laborers and women were confined to relatively narrow domestic roles, removed from the market and dependent for their support on the wages of their husbands. Indeed, the statutes anticipated by over half a century the American welfare state's two-track approach to support for wage-earning men and dependent women.     

Sexual violence perpetrated against women in India: the role of forensic evidence

ABSTRACT

In response to the upsurge in acts of sexual violence against women in India, Parliament passed the Criminal Law (Amendment) Act of 2013, amending existing statutes and rules of evidence relating to crimes of sexual violence and the practices of forensic professionals in the country. While a step in the right direction, this law paid little attention to forensic evidence in sexual violence cases, which can provide a more objective, scientific account of events, aid in the reconstruction of crimes, and help strengthen cases against perpetrators. The objectives of this article are twofold: to raise awareness for the need for a more prominent role of forensic evidence in sexual violence cases and to recommend ways to establish uniform and comprehensive policies and procedures on the collection and preservation of forensic evidence in order to ensure that cases of sexual violence against women are heard in Indian courts.     

Understanding the essential principles of landlord and tenant laws in Nigeria through judicial decisions

Tenancy relationships in Nigeria are largely regulated by statutes. Most of the provisions of these statutes to lawyers and other stakeholders are susceptible to inconsistent interpretations. In recent times, the courts in Nigeria have taken steps to look beyond the law books and give flesh to areas in tenancy matters where there seem to be inadequacies in the provisions of the laws. In doing this, the courts have come up with some legal principles that the relevant statutes do not explicitly provide for, but arguably flow from the provisions of such statutes – a good example being the principle that a tenant who contests ownership with the landlord loses right to statutory notice to quit. Terms such as ‘landlord’ and ‘tenant’ are not as simple as they appear, especially considering the statutory definitions given to them by some of the tenancy statutes in Nigeria – particular attention is given in this regard to Tenancy Law of Lagos State 2011. This paper considers the intricacies of the definition of and relationship between the landlord and the tenant as provided in statutes and as interpreted by overtime by courts in Nigeria. The paper analyses the nature of the relationship between the landlord and the tenant as may be conceived and disambiguates the scope of law of a landlord and tenant relationship in Nigeria.     

Dr Bonham's Case and ‘void’ statutes

There are two opinions on Coke's remarks in Dr Bonham's Case concerning ‘void’ statutes. Firstly that Coke was assuming a power to declare statutes void as incompatible with some form of higher order law; secondly that Coke was merely asserting a power to interpret statutes. This article suggests that the range of meanings of the word ‘void’ in early-modern English law undermines the foundations of the first position, and that there is no good evidence suggesting a natural law position. Coke's method of statutory interpretation is then explored, showing that his report accords with contemporary jurisprudence on grants of judicial power and parliamentary affirmations of earlier acts, and that the word ‘void’, in this context, had a purely inter partes meaning.     

The New Puritanism: The Resurgence of Contractarian Citizenship in Common Law Welfare States

In common law jurisdictions, legislative reforms to their welfare states are frequently framed in terms of their innovative nature. However, such legislative reforms, on the contrary, may be representative of a more historical ‘puritan’ view of welfare and citizenship, the doctrines of which originate in the aftermath of the sixteenth‐century Protestant Reformation, and which developed in the following centuries. The core values of this era have always remained within welfare legislation and policy in common law states, and appear to have experienced a resurgence in recent times. These puritan values manifest themselves within welfare legislation under certain distinct themes, which will be expanded upon. The extent to which values of puritan Christianity renders welfare legislation in common law welfare states distinct from that of other welfare states is also a theme which is examined. In addition, the utility of this ‘puritan’ approach towards welfare law and policy is also discussed.     

动物法律地位探析

作为一个经济大国、农业大国和畜牧大国,中国亟待加快动物福利立法。在立法推进过程中,动物的法律地位应当如何界定是个首先需要被回答的问题。通过对动物保护的法理基础、国外相关立法以及案例的考量,认为动物不能成为人类道德乃至于法律的主体,而只能是法律关系的客体。但这并不意味着我们反对保护动物。相反,为了人类的可持续发展,对动物的保护必须加强,在这方面,法律是最为重要和有效的手段。我们应当将动物作为特殊的物,在法律上将其与无生命的物加以区别对待,从而实现动物行之有效的保护。     

Scottish Legal History Group Report 2009

This is the second of two articles examining the relationship between British Imperial statutes and Irish law in the early years of the self-governing Irish state. The present article examines the assertion that the Imperial parliament at Westminster enjoyed the right to legislate for the self-governing Irish state in the 1920s and 1930s. Successive governments in the Irish Free State denied the validity of this legislative power. This article examines a number of Imperial statutes passed between 1922 and 1931 that purported to apply to the Irish Free State. These Imperial statutes were seen as serious threats to Irish legislative sovereignty and have never been recognised by the Irish courts as being part of Irish law. This article examines how the controversial power to pass Imperial statutes for the Irish Free State provoked a serious Anglo–Irish dispute at a delicate stage in bringing the Irish Constitution of 1922 into force. It attempts to illustrate the profound consequences of this dispute for the 1922 Constitution. The article also examines the complex relationship between Irish law and the Statute of Westminster as an Imperial statute. The controversies over Imperial statutes and Irish legislative sovereignty are examined in the context of earlier periods of Irish history and also in the context of recent developments in twenty-first-century Ireland. This permits a consideration of wider questions as to how concepts of national identity influence the acceptance or rejection of particular sources of law.