“法律不知有害”质疑

我国大多数学者认为对事实的不知无害,对法律的不知有害,因而实务中对法律错误一般不予以救济。但事实上,不管是在罗马法上,还是在当代的大陆法系和英美法系,大部分国家都会对部分法律错误予以救济。而在确定何种法律错误可予以救济时,应充分考量在特定情况下对表意人"知法推定"的合理性以及表意人与第三人之间的利益衡量。     

The Devilish Details: Key Legal Issues in the 2015 Climate Negotiations

The ongoing UN negotiations for a 2015 climate agreement have yet to resolve two fundamental legal issues on which its effectiveness will hinge. The first is the precise legal form this agreement will take. Parties had agreed to work towards a ‘protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties’. This leaves scope for a range of possible legal forms, only some of which are legally binding. Second, they have yet to determine the legal nature of the ‘nationally determined contributions’ submitted by Parties. This article addresses these two critical issues: on ‘legal form’, it identifies the instruments that could form part of the Paris package, focussing on their legal status, significance and influence; and on the ‘legal nature’ of nationally determined contributions, it considers their nature and scope, the range of options for ‘housing’ these contributions as well as their relationship to the core 2015 agreement.     

Governance,Proceduralisation and Justice: Some Challenges to the Legal Paradigm

In 1989, Rudolf Wiethöltner alleged that we are witnessing a ‘failure of law’ in terms of its obligation to achieve ‘just law’. This paradox at the very heart of law – in essence, the impossibility of the realisation of legal justice twinned with the law's inability to cease trying to attain this goal – has been accommodated to a degree by the utilisation of a proceduralist paradigm that relies upon the contingency of governance, but this is now coming under renewed scrutiny. This article will put forward three arguments in this respect. The first section will argue that the turn to governance and the resultant procedural paradigm are both consequences of the ‘failure of law'; the second will point to the inherent weaknesses of the procedural paradigm that can be said to stem from this very failure; while the third will discuss some of the challenges issued to those still reliant upon the legal paradigm.     

Tilting at Windmills: the Defamation Act 2013

In April 2013, the Defamation Act was passed, the culmination of a four‐year political campaign. The legislation is intended to ameliorate the ‘chilling effect’ of libel law on scientists, online commentators, NGOs, and others. This paper considers the main changes wrought: reform of the main common law defences, changes relevant to scientific discourse and online speech, and revisions that will impact on process. It identifies areas where there will be problems of interpretation for courts, and suggests that the Act will fail to provide clarity for publishers keen to assess the legality of their actions. The paper also contends that more attention should have been paid to remedies (in particular, the desirability of discursive remedies such as the right of reply). The question is posed whether the Act addresses the core problem with libel law: the juridification and over‐complication of public sphere disputes, and the attendant cost of embroilment in legal proceedings.     

信用证欺诈法律救济的理论发展过程及其评述

信用证欺诈的频频发生,引起了人们关于对信用证欺诈的法律救济措施和法律救济理论的关注。本文重点论述了信用证欺诈法律救济理论及其发展的三个阶段,即:“禁止法院干预学说”阶段、“限制法院干预说”阶段和“法院依法救济说”阶段。本文还结合具体的案例对三个阶段的理论进行了具体和深入的分析。     

‘Wrong’ cases and ‘wrong’ plaintiffs: intergenerational relationships and legal consciousness in China

Legal consciousness is not a monolithic concept even in the minds of individual actors. Invoking the law is sometimes viewed positively and at other times not. My study reveals that ordinary people in China consider lawsuits seeking divorce to be acceptable but strongly disapprove of lawsuits seeking intergenerational support. My detailed analysis of this sharp contrast suggests that people consider legal mobilization favourably when claims are brought by the ‘right’ people in the ‘right’ cases, but that they bitterly oppose it when the ‘wrong’ people bring the ‘wrong’ kinds of cases. In this article, I explain how these categories of ‘right’ and ‘wrong’ legal claims and plaintiffs come into being and how they shape the legal consciousness of potential litigants in China.     

Uses of Macro Social Theory: A Social Housing Case Study

This article reflects on the use of macro social theoretical perspectives to explain micro social issues, using social housing allocations as a case study. In contrast to a number of social theoretical examinations of social housing allocation schemes in recent years, spanning socio‐legal studies, we argue that ‘cookie‐cutter’ theories may overlook other positions and counter‐factual scenarios. We draw on a sample of local authority allocation schemes to reflect on the growing category of households (commonly termed ‘unhouseables’ by housing officers) which are excluded from appearing on such schemes because of their former housing deviance or some other disqualification. We offer a set of reflections grounded in our data, which focus on sustainability. Thus, rather than point to particular rationalities or the like, we offer particular housing issues as explanatory factors – including the declining stock and financial ‘competitiveness’ of social housing management – as well as a rise in punitiveness.     

Changing regulation and the future of the professional partnership: the case of the Legal Services Act, 2007 in England and Wales

The UK Legal Services Act 2007 permits external financing and unlimited non-lawyer ownership of legal practices through the formation of Alternative Business Structures (ABSs). For many, the impact of this changed regulation on the ‘professional partnership’, as the dominant organisational form through which legal services are delivered, will be considerable. However, to date few studies have explored this empirically. This paper addresses this gap by examining organisational changes within ABSs to assess how far these firms have departed from the professional partnership model. Focusing upon the ABS population licensed by the Solicitors Regulation Authority between January 2012 and August 2015, the study findings show a continuum of organisational responses against four specified indicators: incorporation; multi-disciplinary practices; non-lawyer ownership; and external investment. These range from those that depart little from traditional practices to those that are more radical. We conclude that, whilst regulatory reform has yet to dislodge the dominance of the professional partnership, it has disturbed the status quo and increased the variety of ‘economic units’ within which legal services are delivered.     

The right to be forgotten – a Dutch perspective

This paper will be investigate to what extent the right to be forgotten as proposed by the European Commission is already recognized in Dutch tort law. The focus of this paper will be on the existence and the desirability of such a right and not on questions of enforcement. It is submitted that although Dutch law does not recognize the right to be forgotten as such, several judicial decisions can be identified that afford protection to interests that are also protected by the proposed right to be forgotten. This indicates that in the Netherlands a right to be forgotten in some form or another might have developed over time but this would have been a lengthy affair. A more precise formulation of this right by the legislator is therefore welcomed. It has been remarked that the name ‘right to be forgotten’ may give rise to unrealistic expectations but the Dutch experience shows that people do not seem to be very aware of their rights. ‘A right to be forgotten’ – however imprecise from a legal viewpoint – might be catchy enough to remedy this.     

Gendering the Legal Complex: Women in Sri Lanka's Legal Profession

Drawing upon feminist standpoint theory and interviews with pioneering women lawyers in Sri Lanka, I argue for a focus on women as a distinct category in ‘legal complex theory’. I consider the following questions in making this claim. What were the internal structures of the legal profession that the older generations of women lawyers encountered as they entered the profession and as they took up positions of leadership? In what ways, if at all, was the ‘culture(s)’ within the profession patriarchal? In what ways, if any, did the entry and advancement of women impact these internal structures of the profession and its culture(s)? And what can we learn from these experiences in predicting the future trajectory of the legal profession? The analytical expansion that I propose reveals gender-based dynamics within the legal complex, such as gender-stereotyped perceptions about women lawyers within the profession, the ‘feminization’ of the profession, and ‘gender segmentation’ within its different spheres.     

Minimal Semantics and Legal Interpretation

In this paper I will tackle three issues. First, I aim to briefly outline the backbone of semantic minimalism, while focusing on the idea of ‘liberal truth conditions’ developed by Emma Borg in her book ‘Minimal Semantics’. Secondly, I will provide an account of the three principal views in legal interpretation: intentionalism, textualism and purposivism. All of them are based on a common denominator labelled by lawyers ‘literal meaning’. In the paper I suggest a novel way of viewing this common denominator as almost identical to the Borgian ‘liberal truth conditions’, at least at a conceptual level. In the third section I will focus on the conceptual similarities between the two ideas. I intend to depict that, although legal theorists do not admit it explicitly, they treat literal legal meaning as minimal propositional content that can be ascribed liberal truth conditions. There are two main objections to liberal truth conditions: their under-determinacy and unintuitive character. Both objections can be applied to ‘literal meaning’. However, the idea of liberal truth conditions gives an adequate account of what lawyers call literal meaning and is helpful in explaining the mechanism of understanding of provisions and reasons leading to the necessity of statutory interpretation.     

Mapping current issues in administrative justice: austerity and the ‘more bureaucratic rationality’ approach

This article critically reviews recent developments in the administrative justice system; in particular, it considers three key themes: improving initial decisions; administrative review; and the future of tribunals. In each of these areas, some aspects of administrative justice work well, but austerity has presented acute challenges in ensuring the fair and just treatment of people through restrictions upon legal aid; the withdrawal of some appeal rights; and the expansion of administrative review. Consequently, the system is moving away from a ‘legal’ model of administrative justice to the ‘bureaucratic rationality’ model, which focuses upon accurate and efficient implementation. However, the reality does not correspond with the goals of the model. Rather than accurate and efficient implementation of policy, what we find is poor decision-making made by junior officials with insufficient quality controls. Digitising tribunals may have potential benefits in terms of increased accessibility. Nonetheless, the prospects for administrative justice are weak.     

Law,culture and massively multiplayer online games

Massively multiplayer online games (MMOGs) are now a major international phenomena. Millions of people can play together online, readily navigating boundaries between nations, languages and legal jurisdictions. The communities around some of these games are huge, of a size equivalent to a large city or small nation. This article explores three themes, labelled for conceptual purposes ‘games as legal spaces’, ‘games need lawyers’, and ‘lawyers need games’. It argues that games are inherently legal spaces, infused with legal-ness in a variety of ways; that more direct engagement from the legal community would be of tremendous value in making these systems, and the entertainment spaces which they regulate, ‘better’; and that we have a great deal to learn about law and about the regulation of the online space from games. The article concludes with the proposition that there is an opportunity for impactful knowledge exchange between legal scholars, MMOG developers and publishers, and the gaming community.     

新农村建设中土地流转的现实问题及其对策

新农村建设中的农地流转和土地利用,要尊重农民的权利和意愿,在农地流转中要节制资本,将资本下乡和合作社限定在为农民和农业生产服务的领域内,防止资本对农民土地的兼并导致农民失业破产。应当采取严格的问责制度和严厉的责任追究制,以制止地方政府权力对农民权益的侵害。同时要建立完善其他法律制度,允许集体建设用地使用权直接入市,改革城乡建设用地挂钩的政策,建立耕地复垦和耕地保护补偿制度。在此基础上,完善关于农民房屋转让的规定,允许房屋所有人与本集体共同对房屋和宅基作出处分,包括向城市人出卖房屋和宅基地,由集体取得建设用地(宅基地)的出让价值,由房屋所有人取得房屋的市场交换价值。     

A 'European' Conception of Legal Consciousness: Rediscovering Eugen Ehrlich

This paper discusses the present ‘legal consciousness’ literature and seeks to identify two different conceptions of legal consciousness. Most of this literature originated in the United States, but there has also been a growing interest in issues of legal consciousness in Europe. The use of the term ‘legal consciousness ’ in these European discussions is, however, remarkably different from its use in the United States literature. It is argued that the most commonly used ‘American ’ conception of legal consciousness reflects important ideas of Roscoe Pound and asks: how do people experience (official) law? By contrast, a European conception of legal consciousness, which was first introduced by the Austrian legal theorist Eugen Ehrlich, focuses on: what do people experience as ‘law ’? After both perspectives are applied in a case‐study of a run‐down neighbourhood in the Netherlands, it is concluded that future studies of legal consciousness may benefit from an integration of the two conceptions.     

The Difference a Job Makes: Licit and Illicit Work Experiences and Aspirations at a Transitional Housing Facility for Women Leaving the Sex Industry

This investigation establishes a baseline understanding of how women exiting the sex industry understand the economic options available to them by reviewing their work experiences in the legal economy, histories of sex industry involvement, and their aspirations for legal work upon entering a yearlong residential program offered at a transitional housing facility. Specifically, it explores how prior work experience, type of sex industry involvement, and demographic characteristics such as race and age intersect with women’s legal work aspirations upon leaving the sex industry. Analysis indicates that women’s occupational choices are limited by prior experiences within the formal and informal economies and that women of color and poor women of all ethno-racial backgrounds are particularly likely to face disadvantages in both economic sectors. Findings accordingly indicate that rehabilitative settings must consider whether the career pathways they create lead to economic self-sufficiency and reduce the likelihood that women will return to life situations they express a desire to leave.     

Narratives about privacy and forgetting in English law

This paper examines narratives about the right of privacy in the UK. It argues that until relatively recently the dominant narrative was one that associated privacy with celebrity claimants and media defendants. Other narratives, such as those concerned with digital privacy and data protection, did not feature as prominently. But changing technological and social contexts mean that these narratives are now understood to be of immense importance too. This paper explores these narratives against the backdrop of the European Commission's proposals for a ‘right to be forgotten’ (now relabelled a ‘right to erasure’), the subject-matter of this special issue, as well as the 2014 Google Spain judgment. The paper emphasises the importance of forgetting as an aspect of the right to privacy and argues that while the UK legislator and courts have been slow to give effect to erasure remedies, they must now start exploring the bounds of legal possibility in order to meet the challenges of the digital age.     

数智化社会的法律调控

数智化逻辑是人机互融、虚实同构、算法主导。数智化社会关系的架构化和建模化,彻底改变我们认识、把握和干预世界的方式。数智化后设机制统御一切行为及关系,法律与法学作业理念将由"如何修复和恢复社会"转向"如何规训和塑造社会"。法律对社会的调控应由"裁断行为后果"前移为"塑造行为逻辑",由事后处置转向参与建设社会关系"架构",由赋权与救济转向责任与义务的加载与规制。法律算法化自动运行将成为常态,法律人工操作将成为非常态。数智化逻辑摧毁权利本位和司法中心主义法律法学观,权利主义法学势必为规制主义法学所取代。     

Building sustainable free legal advisory systems: Experiences from the history of AI & law

The enthusiasm for artificial intelligence (AI) as a source of solutions to problems is not new. In law, from the early 1980s until at least the early 2000s, considerable work was done on developing ‘legal expert systems.’ As the DataLex project, we participated in those developments, through research and publications, commercial and non-commercial systems, and teaching students application development. This paper commences with a brief account of that work to situate our perspective.The main aim of this paper is an assessment of what might be of value from the experience of the DataLex Project to contemporary use of ‘AI and law’ by free legal advice services, who must necessarily work within funding and other constraints in developing and sustaining such systems. We draw fifteen conclusions from this experience, which we consider are relevant to development of systems for free legal advice services. The desired result, we argue, is the development of integrated legal decision-support systems, not ‘expert systems’ or ‘robot lawyers’. We compare our insights with the approach of the leading recent text in the field, and with a critical review of the field over twenty-five years. We conclude that the approach taken by the DataLex Project, and now applied to free legal advice services, remains consistent with leading work in field of AI and law.The paper concludes with brief suggestions of what are the most desirable improvements to tools and platforms to enable development of free legal advice systems. The objectives of free access to legal information services have much in common with those of free legal advice services. The information resources that free access to law providers (including LIIs) can provide will often be those that free legal advice services will need to use to develop and sustain free legal advisory systems. There is therefore strong potential for valuable collaborations between these two types of services providers.