Liberal Rights versus Islamic Law? The Construction of a Binary in Malaysian Politics

Why are liberal rights and Islamic law understood in binary and exclusivist terms at some moments, but not others? In this study, I trace when, why, and how an Islamic law versus liberal rights binary emerged in Malaysian political discourse and popular legal consciousness. I find that Malaysian legal institutions were hardwired to produce vexing legal questions, which competing groups of activists transformed into compelling narratives of injustice. By tracing the development of this spectacle in the courtroom and beyond, I show how the dueling binaries of liberal rights versus Islamic law, individual rights versus collective rights, and secularism versus religion were contingent on institutional design and political agency, rather than irreconcilable tensions between liberal rights and the Islamic legal tradition in some intrinsic sense. More broadly, the research contributes to our understanding of how popular legal consciousness is shaped by legal mobilization and countermobilization beyond the court of law.     

Legal Mobilization within the Bureaucracy: Disability Rights and the Implementation of Antidiscrimination Law in Sweden

This article argues that the analysis of legal mobilization needs to give more attention to the state and its relationship with social movements in order to examine how the state either sustains social movements’ demands or is a field of contention for those demands. Focusing on how disability bureaucrats and activists mobilize antidiscrimination law in Sweden, this article shows that two main factors shape legal mobilization within the bureaucracy and alter the state's ability to become a legal mobilization actor: (1) the institutional relationships between social movement organizations and government agencies and (2) the profiles and careers of bureaucrats and activists. It concludes by suggesting several lines for further research on law and social movements in nonpluralist countries.     

论公司法的性格——强行法抑或任意法?

本文分析公司法的基本性格 ,探讨参与公司制度的各方当事人是否有选择或退出法律规范的自由。对有限公司法而言 ,原则上普通规则可以是任意性的 ,而基本规则应具有强制性 ,不得由当事人自由变更。股份公司法中的基本规则和有关权力分配的普通规则适用于管理层与股东之间利益冲突最为激烈的领域 ,原则上它们应该是强制性的 ,有关利润分配的普通规则则允许有一定的灵活性。在此基础上 ,作者对完善我国的公司法体系和结构提出了若干建议。     

Challenging Medicine: Law, Resistance, and the Cultural Politics of Childbirth

Whereas most sociolegal studies concerned with hegemony and resistance focus on the resistances of ordinary citizens in everyday life, this article focuses on the development of a particular social movement—the alternative birth movement—and analyzes the process by which this movement emerged and has achieved significant legislative victories. The analysis makes several contributions to the literatures on hegemony, resistance, and the law. First, by demonstrating the importance of medicine's assertion of its authority for the expansion and mobilization of the alternative birth movement, we show that the mobilization of the law by a dominant group may trigger the emergence of social movements seeking to resist hegemonic understandings and arrangements. At the same time, by examining how birth activists' organizational resources developed over time and were rendered meaningful in legislative debates, our study demonstrates the importance of avoiding dichotomous conceptions of structure and culture. In addition, by analyzing culture as a process of meaning-making rather than an independent and hierarchical set of values, the analysis shows how cultural and legal hegemony—even that of modern medicine—may be destabilized, even as it sets the terms of the effort to destabilize it and shapes the nature of the hegemony that will replace it.     

论经济法的社会本位理念及其实现

社会本位是以社会整体为中心和起点,要求在个人与社会之间重新分配权利的一种法律思想。它将社会视为目的而非手段,坚持权利本位,但主要关注社会公共权利而非个人权利。私法因其奉行个人本位理念而难以容纳这一权利。社会公共权利的栖息地主要是经济法和其他社会立法。在社会本位实现过程中,国家的作用至为关键,除立法机关应以社会整体为中心配置权利和义务外,司法机关和行政机关应当成为实现社会本位的重要力量。     

Human Genetics Studies: The Case for Group Rights

In this essay, the author focuses on an underlying theoretical issue which she believes seriously affects our collective response to the idea of group rights in the genetic-control context. That issue is to what extent are our responses to claims of group rights hampered by our bringing to the table (consciously or unconsciously) a model which is structured to acknowledge only individual concerns? Put another way, to what extent are our objections to group rights in this context a product of our inability (or refusal) to imagine the idea of group rights, rather than the product of truly substantive concerns?     

Giving and Getting Respect: Prestige and Stratification in a legal Elite

This article focuses on the corporate actor elite of Chicago's legal community—those attorneys who practice law with and for the major business, social, civic, and cultural organizations in the city. A continuation of a previous article, this article focuses on the differential allocation of professional respect made within that elite. Specifically, the discussion centers on the "second-class citizenship" in the legal community to which elite house counsel are relegated by elite partners in private law firms.
The first half of the article probes the social bases for that stigma. Examining a number of alternative explanations, it offers most support to one based on differences in the educational preparations of the respondents, to the effect that house counsel attended less prestigious law schools and performed less outstandingly at these schools than did firm partners at theirs. In the concluding half of the article, the effects of the stigma on elite social cohesion and commonality of purpose are examined. What emerges from this analysis is the finding that the house counsel stigma—strongly felt as it may be by all concerned—nevertheless generates no lasting lines of social cleavage within the corporate actor legal elite.     

论集团犯罪首要分子的实行着手

犯罪的实行着手,具有法律和实质两个方面的特征.着手的法律特征是行为人开始实施刑法分则中规定的某种犯罪客观方面构成要件的行为;其实质特征是行为人开始实施实现犯罪之现实危险性的行为.这两个方面的特征不是对立的,而是形式与实质的统一关系.基于这种理解,一般犯罪集团的首要分子既不以开始实施组织行为为实行行为的起点,也不以完成组织行为为实行着手的时点,而是以实行犯开始实施预谋之罪的实行行为为着手的标志.     

Workers with Disabilities Between Legal Changes and Persisting Exclusion: How Contradictory Rights Shape Legal Mobilization

It has become commonplace within disability sociolegal scholarship to argue that, in the last 30 years, a new legal and policy approach to disability has emerged, leading to a paradigm shift from a social protection framework to an antidiscrimination model. Some authors have stressed, however, that the new model has not fully replaced the older social protection approach. Yet little is still known about how the coexistence of these different models impacts on the everyday experience of disability in the workplace and on potential legal mobilization. Based on interviews with workers with disabilities who mobilized the law to obtain reasonable accommodation in Belgium combined with an analysis of evolving Belgian legal schemes relating to disability, this article explores how interactions between social, labor, and antidiscrimination rights shape legal mobilization of persons with disabilities in the workplace. We find that individual's initial self‐identification as workers or persons with disabilities influences how they frame their claim and the kind of legal norms they refer to in a first stage but that both their identification and their rights consciousness evolve and change through the course of legal mobilization as they interact with various professionals and navigate between the different concepts and rights available in current law.     

现代法学方法论的研究对象和范围

法学方法论是法理学研究的重要内容之一,也是与法律实务最密切相关的部分。但是,中国法学界对其研究的对象和范围没有清楚的认识和界定。应当说,法学方法论的研究对象和范围包括法的渊源、案件事实的认定、法律解释、法律漏洞的填补、法的体系等。     

Making Way: Legal Mobilization,Organizational Response,and Wheelchair Access

Questions of how and why organizations respond to legal rights are analyzed in several sociolegal research traditions, including studies of legal mobilization, regulation, and neo‐institutionalist accounts of the diffusion of organizational structures. Using original qualitative and quantitative data, this article examines the responses of ten organizations to wheelchair access rights that are found in various provisions of the Americans with Disabilities Act (ADA) and related state laws. We find that concepts from each of the research traditions are useful in understanding the sources of variance in response among the organizations in our sample. We focus on four key variables: legal mobilization, commitment, professionalization, and routinization. We contend that these variables offer a relatively parsimonious language for studying organizational responses to the law and for aggregating insights from competing approaches in the literature, both of which are essential to advancing our understanding of the conditions under which law changes society.     

我国缺陷汽车产品召回制度法律问题研究

以我国缺陷汽车产品召回制度为研究的中心,从法律角度分析和阐述了相关的理论问题,同时着重对我国实行汽车召回制度所遇到的难点问题作出了法律上的分析,在阐述和分析问题时,考察和借鉴了国外在相关问题上的先进做法,对如何完善我国的法律规定提出了具体建议。     

The Boycott of the Law and the Law of the Boycott: Law, Labour, and Politics in British Columbia

This article uses a critical theoryllegal mobilization perspective to study the 1987–92 trade union boycott of the British Columbia labour law. The problems encountered establishing a total boycott–one that would eschew all contact with the state–and the subsequent modification of the parameters of the boycott through a selective reliance on the law offer an important case from which to learn more about the role of law and legal rights in highly regulated organizations and how collectives mobilize the law. The author argues that legal rights are important to unions because of their ability to mediate the complexity of labour relations through a decentralization of authority. At the same time, mobilization of the law for this purpose accentuates localized identities and unequal resources that operate in tension with a boycott ethos, necessitating a deliberative politics to legitimize the law. By exploring the tension between these two forms of mobilization around law–one to reduce complexity, another to legitimize broad collective norms–the author analyzes and draws some conclusions about the reproduction of social unionism in British Columbia.     

人本主义视野中法律运行的含义——兼谈法律运行研究的现状及其对策

民法法系侧重立法的研究,普通法系侧重司法的研究.它们共同存在的主要问题是:采用分阶段研究策略,缺乏对法律运行整体的研究;重视对法律运行反常现象的研究,缺乏对法律运行正常现象的研究.其实质是国家主义法律运行观使然,影响了人们对法律运行科学而全面的认识,造成了法律运行的严重不畅.为此,必须转换法律运行研究的观念、路径、重心和视角.法律运行是指法律运行主体人在法律运行过程中所体现出来的一种法律行为或法律活动.     

Reflections on the legal features of the socialist market economy in China

China’s socialist market economy is a market economy co-existing with a large public sector of the economy, affected by the State as a policymaker, a regulator and an important actor along with private ones; general interests in principle prevail over individual ones. A major role of the law is of providing the tools for administrative leadership and efficient macro-control. Legal and policy documents concur in indicating a model for the developing Chinese legal system: not as Western-style “rule of law” (r.o.l.); more and better socialist laws; effective supervision at all levels; intense macro-control over private economy; more efficient, law-abiding administration and legal institutions. The governing authorities are at different levels, according to the size/impact of each specific business, and each of them has or may have a say beyond the law, so implementing full macro- and micro-control on the market at various levels, through a substantial number of “policy checks” at appropriate junctions or in blank areas of the law. Differentiated “modes” of the law could be the results of a coordinated absorption within the socialist frame of values, mechanisms, norms, formants hailing from different sources.     

Legal Cultures in the European Union

The introductory part of the essay deals with the notion of legal culture and its categories. Later, the author sets forth the characteristics of the common law and the Roman- German legal cultures, including the legal families within them. He also touches upon the tendencies of the development of the German legal and political culture. With respect to the integration of the legal systems into the EU, the author argues as an advocate of convergence. Both basic legal cultures are being modified as, besides statutory law, judicial law becomes significant in the continental legal systems and statutory law complements case law in the common law systems. As to the integration of the Hungarian legal culture into the EU, the essay points to two principal considerations. On the one hand, when working on making our legal culture "euro-conform", we must not forget about maintaining our own legal culture. On the other hand, the Hungarian legal culture can contribute to the development of the legal system of the EU, e. g. with some of the regulations of our statute on the ethnic minorities. At the end, the author shows that the efficacy of the European law is heavily dependant upon the national legal systems.     

关于中西法律观念上几个问题的比较

法有两种形态,一种是法律制度或法律规范;一种是法律意识或法律现念。现实生活中,约束和调整人们行为的是前者,但在幕后起作用的却是后者。中西法律规范、法律制度上的差异,实际上是法律观念、法律文化上的差异。从对法之本义的理解、权利观念、对法与情的处理、司法独立意识、对法律职业和法律人的认识等几个方面,比较了中国和欧洲双方不同的价值理念,并对我国的法治建设做了一些思考。     

中国宪法实施的双轨制

与许多西方国家的宪法实施模式不同,宪法审查并非中国宪法实施的主要方式。中国司法机关不能根据宪法直接审查立法的合宪性,而作为有权机关的全国人大常委会,也没有做出过宪法解释或宪法判断。这是中国宪法实施的真实状况,但不是中国宪法实施的全部。从比较法角度看,中国宪法更像一个政治纲领式的宣言,更多依靠政治化方式实施。伴随着法治化进程,中国的宪法实施逐渐由单一依靠政治化实施,过渡到政治化实施与法律化实施同步推进、相互影响的双轨制格局。宪法的政治化实施体现为执政党主导的政治动员模式,而宪法的法律化实施则是以积极性实施为主、消极性实施为辅的多元实施机制。在比较法的意义上,政治化实施和法律化实施的双轨制,可以为描述中国宪法实施提供一个理论框架。     

论个体工商户制度的存与废——兼及中国特色制度的理论解读

作为我国法律体系中富有中国特色的个体工商户制度，其性质与法律地位问题，无论是实体法上还是程序法上，无论是理论研究还是司法实践，均存在争议、混乱甚至矛盾。通过相关案例，法律及法律解释为切入点，系统地对我国个体工商户制度进行了考察，总结得出在当前的法律、理论与经济背景下，再修订《个体工商户条例》，并且续存着诸多传统制度不仅显得多余，而且相反是在开历史的倒车。     

Neuropsychological Evaluation of Competency in Criminal Forensic Contexts

Competency issues can arise at any point beginning with an individual’s initial interaction with the justice system until the same individual is facing the imposition of a sentence. Neuropsychologists are commonly introduced to the criminal arena through referrals related to competence issues, and much can be gained from understanding how cognitive and psychological functioning can impact an individual’s ability to understand and appreciate current circumstances. The present article focuses on three less frequently explored domains of competency, including competence to waive Miranda rights, competence to consent to or refuse treatment, and competency for execution. Pertinent diagnostic considerations are discussed, and relevant legal standards and ethical issues are described. Lastly, evaluation procedures for each type of competence evaluation are discussed. This primer on competency assessment offers a review of the current practices, and limitations, in this burgeoning intersection of law, brain–behavior relationships, and psychology.