Agamben’s Grammar of the Secret Under the Sign of the Law

This paper suggests that a grammar of the secret forms a concept in Agamben’s work, a gap that grounds the enigma of sovereignty. Between the Indo-European *krei, *se, and *per themes, the secret is etymologically linked to the logics of separation and potentiality that together enable the pliant and emergent structure of sovereignty. Sovereignty’s logic of separation meets the logic of relation in the form of abandonment: the point at which division has exhausted itself and reaches an indivisible element, bare life, the exception separated from the form of life and captured in a separate sphere. The arcanum imperii of sovereignty and the cipher of bare life are held together in the relation of the ban as the twin secrets of biopower, maintained by the potentiality of law that works itself as a concealed, inscrutable force. But the ‘real’ secret of sovereignty, I suggest, is its dialectical reversibility, the point at which the concept of the secret is met by its own immanent unworking by the critic and scribe under the *krei theme, and subject to abandonment through the work of profanation; here, different species of the secret are thrown against one another, one order undoing the other. The secret founded upon the sacred is displaced by Agamben’s critical orientation toward the immanent: what is immanent is both potential and hiddenness.     

The Advent of Preventive Criminal Law: An Erosion of the Traditional Criminal Law?

Criminal law in contemporary societies is undergoing a transformation or according to some, even a paradigm shift. The reach of criminal law is now extended to terrains that were hitherto immune to criminalization. These new forms of criminalization. in post-heroic risk societies are targeting conduct well before it causes a harm. The prime examples of this preventive criminalization. are pre-inchoate offences, crimes of possession of “innocent” objects and crimes of abstract endangerment. The common trait of these offences is that they enable the so-called preponing criminal liability (Vorverlagerung), through which the earliest of preparatory acts, neutral, everyday activities such as merely standing around or merely possessing may well fall within the reach of criminal law. This phenomenon is now taking place virtually everywhere considered by many as an erosion of the traditional post-enlightenment criminal law model. Yet, proponents of the preventive criminal law are suggesting that such laws are needed in order to avert risks (terrorist attacks, for instance) while they are at preparation phase. There is, therefore, a tension between the traditional criminal law and new security interests that pose new questions which need to be addressed by a meticulous analysis. In this article I shall try to deal with following questions: Whether these preventive offences are inherently incompatible with the rule of law? How far a law-abiding nation can go in criminalizing preparatory acts? Are there any promising constraining constitutional principles or instances that delimit preventive criminalization?     

Recodifying the Law: A Metalinguistic Inquiry into the Recodification of Belgian Law Between 2014–2019

International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique - Legal scholars attribute a great deal of importance to the linguistic dimension behind...     

The Changing Face of Corporate Liability – New Hard Law and the Increasing Influence of Soft Law

The first frameworks defining standards of human rights protection specifically for business enterprises were non-binding “soft law” like the UN Guiding Principles on Business and Human Rights. In recent times, a “hardening” of corporate human rights law has taken place. Several acts of “hard law” have been implemented at a national and EU level. This article provides an overview of the most important ones. The “hard law” provisions differ in their scope: some obligate companies to report on human rights, others stipulate concrete obligations to conduct human rights due diligence. Another way of tackling the issue of human rights compliance has been demonstrated by the prosecution of companies in the United States. While procedural guidelines abstractly stipulate an effective compliance system to be a mitigating factor, the US Department of Justice regularly defines concrete compliance obligations in deferred or non-prosecution agreements. This development could lead to comprehensive liability for negligence due to organisational and monitoring deficiencies. But who defines the standards? This article examines how the changing practice of human rights compliance may have “feedback effects” on hard law, particularly by changing the scale of negligence. Regarding the lack of effectiveness of some due diligence measures, especially in the “certification industry”, it is then asked how legislation may proactively exert influence by defining effective CSR instruments necessary to prevent civil and criminal liability. Using the example of German law, a proposal is made to implement an obligation of human rights due diligence in “hard law” and, simultaneously, set up an independent expert commission that drafts guidelines specifying the necessary measures for different kinds of companies.     

Beyond the Law?: The Justice of Deconstruction

This paper offers a close reading of Derridas essay Force of Law that emphasises the twin strengths of a deconstructive approach to questions of law and justice -- textual analysis and political context. Derridas interest is in limit or test cases, and so he engages with the fraying edges of the law, its borders, the frontiers that are most heavily policed because they are most fragile, for example capital punishment, genocide, general strikes and terrorism. Derrida undertakes an exploration of violence through a reinterpretation of Walter Benjamins Critique of Violence. At the heart of Derridas difficult argument is a demand for justice that goes beyond the cataloguing of specific injustices, and beyond the terms of Benjamins critique. The utopian impulse that underpins Force of Law is carried over into Specters of Marx, Derridas recent explicit grappling with the legacy of Marxism. The links between these two texts by Derrida implies a sustained politics of radical commitment on the part of deconstruction, a commitment to future forms of legality and egalitarianism, a theory of justice posited upon prescience rather than precedent.     

Above the Law? A Comparative Study of National Prosecutions of Heads of State

Official polices on the appropriate government response to crimes committed by a head of state are seldom dictated by strict principles of justice. Deciding whether to bring an errant leader to justice is often influenced by political expediency. Given the number of documented cases of official abuse, there is a need to understand why some governments choose to prosecute a former or sitting head of state while others do not. Yet, few studies have been done on this subject. This study reviews 52 cases of heads of state accused of crimes and explores how their own national governments responded to such accusations. Using data culled from various documentary sources, it employs a grounded theory approach to focus on the process that drives the decision to prosecute. Analysis indicates that political legitimacy, perception of threat, political stability, and degree of politicization of the military influence the decision to prosecute. The article concludes with a discussion of the significance and implications of these findings and suggestions for future research.     

Apprehension and Application of the Confession Provision ＂Amendment 8th of the Criminal Law＂

《刑法修正案（八）》第8条规定了坦白从宽情节,这是我国刑事立法上首次确认坦白从宽制度。坦白从宽法定化是落实宽严相济刑事政策,实现司法公正、提高司法效率,走出司法尴尬境地之必然产物。坦白,是指犯罪嫌疑人除构成自首以外的如实供述自己罪行的情形。坦白的主体是＂犯罪嫌疑人＂,可以包括犯罪单位。坦白的成立条件包括：被动归案;如实供述自己的已被司法机关掌握的罪行或者如实供述司法机关虽未掌握、但与已掌握的罪行属同种罪行。坦白从宽是原则,不从宽是例外。避免特别严重后果的发生可以从四个方面进行认定。     

No Harm No Foul? Objectivism and the Law of Attempts

Law and Philosophy -     

Promoting Whole-Process People’s Democracy Following the Rule of Law

Whole-process people’s democracy profoundly reflects the features of socialist democracy with Chinese characteristics, and comprehensively and systematically reveals the concept of people’s democracy as providing important mechanisms of national and social governance. Based on the traditional democratic understanding of democracy as majority rule, whole-process people’s democracy emphasizes the universality and extensive range of democratic governance, but also has the natural value defects of democratic value itself. Therefore, we must organically combine democracy with the values of the rule of law and human rights, to build a well-defined governance order based on people’s democratic value. The whole process in the “whole-process people’s democracy” has really resolved the situation of people’s “absence” from many links of state power operation caused by over-emphasizing the election-democracy in the Western capitalist democratic system. Through the people’s extensive participation and effective supervision, the state power operation mechanism based on the fundamental political system, the people’s congress system, has been ensured to be always in the framework of people’s democratic governance. This effectively realizes the people’s sovereignty and is consistent with the declaration that “all power in the People’s Republic of China (PRC) belongs to the people,” stipulated in the Constitution of China. To improve the governance efficiency of whole-process people’s democracy in practice, we must bring it onto the rule of law, and use the rule of law philosophy and methods to reasonably and effectively resolve all kinds of theoretical and practical problems.     

Does the Controversy Matter? Comparing the Causal Determinants of the Adoption of Controversial and Noncontroversial Rape Law Reforms

Do the causal determinants of legal change differ for controversial and noncontroversial laws? Using rape law reforms as an example of legal change, I answer this question via a longitudinal examination of the intrastate characteristics and interstate processes that affect the adoption of both controversial and noncontroversial rape law reforms. The results show that the adoption of partial reforms significantly decreases a state's likelihood of passing a stronger version of the reform only for controversial rape law reforms. Other factors, such as women's economic power and the interstate process of diffusion similarly affect both controversial and noncontroversial reforms. Thus, contrary to the idea that the process of diffusion operates differently for controversial reforms, the results indicate that spatial proximity negatively affects the adoption of both controversial and noncontroversial rape law reforms. These findings have important implications for theoretical explanations of legal change, research on rape law reforms, and social movement research and activism.     

Should the EU Protect Democracy and the Rule of Law inside Member States?

Against the background of recent developments in Hungary, the article discusses the question whether the European Union ought to play a role in protecting liberal democracy in Member States. First, it is argued that the EU has the authority to do so, both in a broad normative sense and in a narrower legal sense (though the latter is more likely to be disputed). The article then asks whether the EU has the capacity to establish a supranational militant democracy; here it is argued that at the moment both appropriate legal instruments and plausible political strategies are missing. To remedy this situation, the article proposes a new democracy watchdog, analogous to, but more powerful than, the Venice Commission. Finally, it is asked whether EU interventions would provoke a nationalist backlash. There is insufficient evidence to decide this question, but the danger of such a backlash probably tend to be overestimated.     

The Professional Model of Law vs. The Business Model of Law: A Critical View of Opposing Trends in the United States of America and the People��s Republic of China

This study begins by reflecting on the literature characterizing the nature and function of a profession qua profession. It continues by arguing that based upon commonly used indicia of a profession that the practice of law in the US is de-professionalizing in significant ways and morphing towards a functioning business model. The related advantages of such a development for American society, its lawyers and their clients, including especially criminal defendants are critically discussed. It then traces the emergence and ascendancy of the rule of law in China and corresponding quest to institutionalize the practice of law in China as a profession. The study concludes by exploring the alternative advantages of applying the business model to Chinese legal practice. It recommends that embracing a paradigm shift away from the professional model towards a business model, comparable to what is happening in the US, would be to the greater advantage of Chinese lawyers in terms of enhanced authority, increased self-regulation, as well as providing greater leverage in advocating client interests.     

How Chinese enterprises live in freedom,competition under the rule of law —on the current changes of Corporate Law and Competition Law in China1

China has thoroughly amended its corporate law and hastens to formulate an anti-monopoly law. To rebound then deny the planned economy once adopted, China firmly practices marketization reform. However, common-recognized rules haven t taken shape without sufficient gaming and, lots of quick introduced legislations are only superficial provisions. As the trend of corporate legal system in developed countries, freedom and responsibility are the two contraries but not contradictory directions during the recent reform of China s corporate law. One is deregulation, e.g., introducing one-person company and the transition from approval system to registration system for the establishment of a company; while the other is adding various provisions of responsibility and liability to the Company Law for controlling shareholders, actual controllers, directors, supervisors and top managers. The Anti-Unfair Competition Law of China not only prescribes unfair competition but also counters monopoly. In general, it mainly focuses on anti-monopoly provisions, to popularize the concept and value of free market, making systematic regulations on any kinds of monopoly. This article reviews its background, process, meaning as well as the problems encountered. As there remains somewhat a mystery that China rapidly develops, it may also reflect a fringe of the reason.     

The Origins of ‘Alien Status’ in the English Common Law

In his 2001 monograph on Aliens in Medieval Law: The Origins of Modern Citizenship, Dr Keechang Kim suggested that there was no evidence before the late fourteenth century that birth beyond the sea made a person an alien. This article discusses a series of cases heard from the mid-thirteenth century onwards in which tenants pleaded the claimant's birth overseas by way of bar to hereditary claims to land and in which it seems to have been treated as a bar in itself, though one to which the king might grant special exemption. This seems to have remained the position until legislation of 1351 (triggered by doubts about the eligibility of two sons of Edward III born overseas to succeed to the throne) which not only confirmed their eligibility but also made the first general extension of the right to inherit to children born overseas to parents in the king's allegiance.     

Law Enforcement and the Rights of the Accused: Are the Police Getting a Bad Rap?

Nationwide, law enforcement professionals have endured increasing scrutiny regarding their treatment of custodial suspects and their alleged abridgement of suspects’ Constitutional rights. At the same time, in the interests of community safety, many members of the public fully expect police officers to function efficiently in arresting and facilitating the prosecution of likely perpetrators. These perspectives reflect due-process and crime-control models respectively. Very little is known, however, about how law enforcement professionals actually view the rights of the accused when not acutely immersed in the cross-currents of public opinion. Using an anonymous survey, the current investigation addresses both Miranda rights as well as the European Union’s (EU) much more comprehensive approach to the rights of the accused. In general, this sample of 209 urban police officers favored protections of criminal suspects that went considerably beyond Miranda safeguards.     

The Elective and Automatic Theories of Termination in the Common Law of the Contract of Employment: Conundrum Resolved?

If a party to an employment contract commits a repudiatory dismissal or resignation, it has long been unclear whether the other party has the option either to terminate or affirm the contract (the elective theory) or whether the former's breach operates to bring the contract of employment to an end (the automatic theory). The recent decision of the Supreme Court in Société Générale (London Branch) v Geys has finally resolved this question. By a majority, the Supreme Court held that the elective theory also applies in the context of a wrongful repudiation of the employment contract by express dismissal or resignation. This note examines the significance of Geys in the context of the common law of the contract of employment and evaluates whether a number of related issues surrounding the breach and termination of the employment contract have been resolved.