The Outer Limits of Copyright Law – Where Law Meets Philosophy and Culture

This article engages in a cultural critique of copyright law. The point is to explain how and why this body of law is culturally exclusive, notwithstanding the claims made by judges and others that the law is culturally open and inclusive. This involves a discussion of the relationship between philosophy and law, and of how this nexus has been misrepresented by the courts and in recent writings on the subject. Analysis centres on a discussion of Australian case law involving indigenous claims of communal ownership of copyright and the treatment of technology when it comes to attributing authorship.     

What Is Transnational Law?

Is it important to conceptualize transnational law and “map” it as a new legal field? This article suggests that to do so might help both juristic practice and sociolegal scholarship in organizing, linking, and comparing disparate but increasingly significant types of regulation. To explore the idea of transnational law is to raise basic questions about the nature of both “law” and “society” (taken as the realm law regulates). This involves radically rethinking relationships between the public and the private, between law and state, and between different sources of law and legal authority. Taking as its focus Von Daniels's The Concept of Law from a Transnational Perspective and Calliess and Zumbansen's Rough Consensus and Running Code (both 2010), the article considers what approaches may be most productive, and what key issues need to be addressed, to make sense of broad trends in law's extension beyond the boundaries of nation‐states.     

Law reform in small states†

Law reform can be a complex and challenging process in any jurisdiction. Small states face additional challenges, and some advantages, associated with a small population and land area. This article looks at how law reform agencies in small states adapt the law reform process, and the particular significance of comparative research in that context. It goes on to outline how, despite the challenges, small state and jurisdiction law reform agencies have made very considerable contributions to the law. Finally, the article assesses the particular utility of co-operation between law reform agencies, including through regional associations.     

Can Tort Law Be Moral?

According to the established orthodoxy, the law of private wrongs—especially common law torts—fails to map onto our moral universe. Four objections in particular have caught the imagination of skeptics about the moral foundations of tort law: They purport to cast doubt over the moral appeal of the duty of care element; they target the seemingly inegalitarian objective standard of care; they object to the morally arbitrary elements of factual causation and harm; and they complain about the unnecessary extension of liability under the guise of the proximate cause element. Analyzing these four prevailing arguments concerning the a‐moral (and, with regard to some interpretations, anti‐moral) character of tort law, I shall seek to show that the normative structure of tort law can, nonetheless, be reconstructed so as to reflect, to an important extent, our considered judgments about basic moral principles.     

Law Like Poetry – Burnt Norton

Poetry and law are usually cast in opposition but there is a little regarded dimension of responsiveness in law which would incline them towards similarity. The opposition and the similarity are amplified in various instances. Then similarity is affirmed in an involvement in the first of T.S. Eliot'sFour Quartets, ``Burnt Norton'. This revised version was published online in August 2006 with corrections to the Cover Date.     

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...     

Necessary and Universal Truths about Law?

Prominent analytical jurisprudents assert that a theory of law consists of necessary, universal truths about the nature of law. This often‐repeated claim, which has not been systematically established, is critically examined in this essay. I begin with the distinction between natural kinds and social artifacts, drawing on the philosophy of society to show that necessity claims about law require a fundamental reworking of basic understandings of ontology and epistemology, which legal philosophers have not undertaken. I show law is a poor fit for a priori and a posteriori knowledge. I distinguish between universal application and universal truth, showing the former is sound while the latter is not. I expose the implications that follow from the initial selection of the central case of law, demonstrating that this choice must be justified, and I reveal two ways analytical jurisprudents shield their theories of law from refutation. This analysis raises significant doubts about the claim by analytical jurisprudents that they are identifying necessary, universal truths about the nature of law.     

Fazhi vs/and/or Rule of Law?: A Semiotic Venture into Chinese Law

The paper is an investigation offazhi (rule of law) in China. The studyproposes a tentative semiotic framework for theinterpretation of the rule of law as a legalconcept to be applied to China in the light ofits recent incorporation into the ChineseConstitution. The paper argues that legalconcepts such as the rule of law are triadic innature and their constituents are relative,relational and contextual in the semioticinterpretative process. The study examines howthe concept can be explicated with the thin orformal theory of the rule of law as a frame ofreference, and how the semiotic model maycontribute to the understanding of the Chineserule of law or the lack thereof. This approachalso attempts to account for the gap betweenthe legal ideal and reality in China andcanvasses cross-cultural considerations. In thefirst part of the paper, a semiotic frameworkfor legal concepts is postulated forconstructing the meaning of the rule of law,followed by its application to contemporaryChina.     

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.     

Proper Law的含义及其中文译法

<正> 一 Proper Law的翻译及其分歧 The Proper Law Doctrine是英国学者创立的一种冲突法学说。它发端于合同法领域,后扩展到侵权行为及其他领域。它试图利用一简单却无所不包的系属公式来解决所有合同的法律适用问题。其独特的体系、原则和方法,在学说林立的冲突法学领域堪称独树一     

谈谈“CiVil Law”的涵义

<正> 一、问题的提出 "关于《中国大百科全书·法学》答客问"(裁《法学研究》1990年第1期,以下简称《答问》)对《中国大百科全书·法学》若干词条的内容提出了批评性意见。笔者以为,《答问》的有些意见是正确的;具有相当的参考价值。然而,《答问》对"civil law"一词涵义的论断,笔者持异议。