当代中国主流法律观及其深度融合——兼及法律方法论的实践功能

从现象学角度来看,法律显现自身的活动与过程具有一种"构成"的性质。在法律实践中,各种政治因素、社会因素、历史文化因素不断获得规范性整合而使法律获得旺盛的生命力。通过梳理和分析当代中国主流法律观及其深度融合之可能,可以发现更为适合中国法治路径的法律观应当是来自基于现象学的规范法学,而法律方法论则是实践法治必不可少的技艺。     

‘Playing the Judicial Card’: Litigation Strategies during the Process of Ratification of the Lisbon Treaty

During the process of ratification of the Lisbon Treaty, a number of constitutional jurisdictions were activated by political actors. In playing ‘the judicial card’, opponents of ratification decided to seek political goals through judicial means, and thus they were obliged to develop litigation strategies. This article explores such strategies and the responses that courts gave them. It shows that constitutional proceedings with regards to the Lisbon Treaty became a political battleground governed by legal logics, in which the interpretation of European clauses, the democratic deficit of the Union and the tensions underlying the European judicial dialogue were privileged objects of discussion between claimants and courts in which law and politics intertwined.     

Law and American Political Development

This essay reviews the recent volume edited by Ronald Kahn and Ken I. Kersch, The Supreme Court and American Political Development (2006), as well as the broader literature by law scholars interested in American Political Development (APD). The Law and APD literature has advanced our knowledge about courts by placing attention on the importance of executive and legislative actors, and by providing political context to our understanding of judicial decision making. But this knowledge would be more powerful if it would embrace the broader APD field's orientation toward the importance of state and institutional autonomy for understanding politics and political change. Law and APD scholars could go further in examining the ways in which courts and judges act institutionally, and how the legal branch as an institution impacts American politics and state-building. In doing so, Law and APD scholars would contribute not only to our understanding of judicial decision making but also to our understanding of the place and importance of courts in American politics.     

All Judges Are Political—Except When They Are Not: A Response

The author explains the origins of All Judges Are Political—Except When They Are Not: Acceptable Hypocrisies and the Rule of Law (2010) as a response to a fundamental question posed by legal realism: How can the judicial process be permeated with politics and yet remain an accepted part of a legitimate legal system? The author demonstrates the ongoing importance of this question by examining debates over the place of constitutional law in the law school curriculum and by assessing public perceptions of the Supreme Court's ruling on health care reform. The author then addresses the critical appraisals presented by the symposium contributors. The critiques are taken as road maps for extending the author's arguments in new directions.     

美国司法政治变迁的内在逻辑——从“罗伊案”说开去

美国的司法政治是司法与政治交互作用的产物。随着司法权的扩张,联邦最高法院突破"政治问题不审查"之传统,主动或被动地介入政治争议;随着政党对峙的尖锐,政治力量乐于将棘手的政治争议交由司法裁断;藉此,司法政治演变为常态政治,司法判例成为经久不衰的政治争点。自上个世纪70年代以来,围绕罗伊案半个多世纪的争议,不仅客观地暴露了美国司法政治发展的内在逻辑,而且也充分地展示出司法政治在美国的作用方式和涵摄空间。     

Face-work in Chinese routine criminal trials

This article examines the performative aspect of face-to-face interactions among various legal actors and defendants in routine criminal trials in China. Using 105 trial videos as empirical data, the author develops a face-work framework to understand how an individual judge's “face”—signifying judges' legal and political roles, and their professional status—is established, protected, and enhanced during courtroom interactions. The study shows that the legal face of judges can be established by some characterizations of the nature of criminal trials such as the demarcation of legal space, the speed of the trial, and the apprising of rights to the defendants. Nevertheless, the legal face can also be disrupted by trial interactions due to judges' lack of judicial authority. Hence, Chinese judges maintain their authority through the establishment of their political face. They also use both their political face and legal face to establish their situational professional status. These interactions often lead to punitive and coercive measures against defendants in trials. While the article focuses on routine criminal trials in China, the face-work framework has the potential to explain courtroom interactions in other types of social contexts and legal proceedings.     

Immigration and its Imperatives

Conflict and compromise have marked domestic immigration and asylum law in many countries. In examining whether these patterns will be replicated at the level of the EU, this article proposes an alternative method for analysing immigration law and its politics, framing them within the complex interaction of the interpretations by key actors of the imperatives of the State, the EU, and the legal sphere. An account of the functional, normative and polity legitimating imperatives, their specific manifestations in different spheres, and their interaction in the field of immigration and asylum is sketched. This politically-grounded analysis explains more clearly the structure of conflict and compromise that characterises this sphere, illuminates the judicial strategies in this field and enables us to speculate upon the probable future of EU immigration and asylum law.     

Quarantined judicial expansion: The environmental legal entrepreneurship of Chinese courts,procuratorates, and NGOs

Although judicial empowerment has become increasingly common worldwide, the expansion of judicial powers in authoritarian countries faces persistent obstacles, such as institutional dependence, lack of political clout, and the repression of civil society. Through empirically examining three cases of environmental legal entrepreneurship under China's new public interest litigation (PIL) system, this study aims to reevaluate the patterns and limits of judicial expansion under authoritarianism. It finds that Chinese judges, prosecutors, and NGOs have been able to leverage the PIL system and their respective institutional advantages to substantially expand judicial oversight on eco-environmental protection. However, the state has established boundaries for such legal entrepreneurship in terms of subject matter, institutional autonomy, and geographic reach, effectively confining them within political spheres considered unthreatening to the regime. Such quarantined judicial expansion shields relevant actors from authoritarian governments' tendency to suppress legal mobilization and thus may be a more viable form of judicial expansion in nondemocratic settings.     

Legal Socialization of Children and Adolescents

Research on children and the law has recently renewed its focus on the development of children's ties to law and legal actors. We identify the developmental process through which these relations develop as legal socialization, a process that unfolds during childhood and adolescence as part of a vector of developmental capital that promotes compliance with the law and cooperation with legal actors. In this paper, we show that ties to the law and perceptions of law and legal actors among children and adolescents change over time and age. We show that neighborhood contexts and experiences with legal actors shape the outcomes of legal socialization. Children report lower ratings of legitimacy of the law and greater legal cynicism when they view interactions with legal actors as unfair and harsh. We show that perceived legitimacy of law and legal authorities shapes compliance with the law, and that these effects covary with social contexts including neighborhood. We identify neighborhood differences in this relationship that reflect differential experiences of children with criminal justice authorities and other social control agents. The results suggest that legal actors may play a role in socialization processes that lead to compliance with or rejection of legal and social norms. An erratum to this article is available at .     

论法律事实的程序保障

法律事实是指在法定的程序空间内,由多方诉讼主体依据既定的规则建构起来的一幅案件事实图景,它是某种法律裁决据以作出的事实依据。正当程序是法律事实之正当性的保障:正当程序能够为法律事实提供独立的建构空间;能够保证法律事实的建构以理性化的方式进行;能够促进事实建构过程中的人权保障;能够凸显法律事实建构的民主性特点。所以,法律事实的正当性只能通过正当程序来实现。     

The Evolving Judicial Politics of European Integration: The European Court of Justice and national courts revisited

This article analyzes how the judicial politics sparked by the European Union's (EU) legal development have evolved over time. Existing studies have traced how lower national courts began cooperating with the European Court of Justice (ECJ) to apply EU law because this empowered them to challenge government policies and the decisions of their domestic judicial superiors. We argue that the institutional dynamics identified by this ‘judicial empowerment thesis’ proved self‐eroding over time, incentivizing domestic high courts to reassert control over national judicial hierarchies and to influence the development EU law in ways that were also encouraged by the ECJ. We support our argument by combining an analysis of a dataset of cases referred to the ECJ with comparative case study and interview evidence. We conclude that while these evolving judicial politics signal the institutional maturation of the EU legal order, they also risk weakening the decentralized enforcement of European law.     

论司法培育和弘扬社会主义核心价值观的机理与技术路径

司法与政治密不可分。法院必须根据其功能定位执行党的政策,为中国特色社会主义事业服务。最高人民法院将国家培育和弘扬社会主义核心价值观的政策转化成司法规范性文件,各级法院审理案件时依据或参考这些文件确定当事人之间的权利义务,从而培育和弘扬核心价值观的要求。司法活动中,法官主要通过法律规范的选择、法律含义的确定、法律漏洞的填补等途径来培育和弘扬核心价值观。     

Contentious Politics in the Courthouse: Law as a Tool for Resisting Authoritarian States in the Middle East

Under what conditions will individuals mobilize law to resist states that operate above the law? In authoritarian countries, particularly in the Middle East, law is a weapon the state wields for social control, centralizing power, and legitimation. Authoritarian legal codes are overwhelmingly more deferential to state authority than protective of citizens' rights. Nevertheless, people throughout the Arab world deploy law to contest a broad array of state abuses: land expropriations, unlawful arrests, denials of jobs and welfare, and so on. Using detailed interviews in Jordan and Palestine, I outline a theory of law as a tool for resisting authoritarian state actors. Integrating qualitative insights with survey experiments fielded in Egypt and Jordan, I test this theory and show that aggrieved individuals mobilize law when they expect courts are powerful and attainable allies in contentious politics. My results further demonstrate that judicial independence does not uniformly increase authoritarian publics' willingness to access courts.     

Law and Rhetoric: Critical Possibilities

What contribution can rhetoric make to socio‐legal studies? Though now a byword for deception and spin, rhetoric was long identified with the very substance of law and politics. Latterly radical scholars have foregrounded an understanding of law as rhetoric in their polemics against legal formalism, but it needs to be complemented by a critical perspective which goes beyond simple revivalism, taking account of rhetoric's own blind spots, inquiring into the means by which some speakers and listeners are privileged and others excluded or silenced. The critical potential of legal rhetoric is tested here through a review of the developing law on mental capacity and the best interests of people with disabilities in England and Wales. Much of what is at stake there is properly grasped in terms of a politics of speech: who is addressed, who can speak, who must speak, and how are they represented in judicial and media discourse.     

Across the Sloping Meadow Floor: An Empirical Analysis of Preremoval Detention of Noncitizens

In many countries, the law permits state authorities to detain noncitizens before deportation. Typically judicial decisions about preremoval detention must be made within a short period of time during which deportable noncitizens are held in police premises, and depending on the country detention may last just one month (e.g., France) or up to 18 months (the Netherlands). While previous research has explored various dimensions of noncitizen detention including the legal procedure, health consequences, the condition of detention centers, and the lives of deportable noncitizens, the empirical assessment of the determinants of decisions on preremoval detention are largely unexplored. Using data from court proceedings of police petitions of detention in Spain and a quantitative strategy, in this article we undertake an empirical analysis of noncitizen detention combining personal background of deportable noncitizens, legal factors of the case, and the behavior of different actors involved in the procedure. To do it, we fit models that take into account variation occurred at judicial district levels. Results indicate, on the one hand, that relevant actors involved in the procedure use different informational cues to decide on cases. On the other hand, the role of prosecutors and attorneys during hearings proves also relevant to predict detention.     

Judicial Activism in Perilous Times: The Turkish Case

Under what circumstances do courts act in ways that challenge the political hegemony of the military in countries with weak democratic institutions? This article addresses this question by focusing on a critical case of judicial activism in Turkey. It argues that lower courts unexpectedly can be centers of judicial activism that contributes to expansion of civil liberties and restrictions on arbitrary state power when the high judiciary supports the political status quo. This is because lower courts provide greater access to legal mobilization pursued by civil society actors. At the same time, judicial activism in lower courts is sustainable only when political power is distributed among elites with conflicting interests, and the civilian government offers support and protection to activist members of the judiciary.     

A tale of targeted violence in Hashimpura: the Delhi High Court on recognition,relations and responses

On 31 October 2018, Justice Dr S Muralidhar (then) at the Delhi High Court convicted 16 members of the Provincial Armed Constabulary (PAC) for, inter alia, the murder of 38 Muslim residents of Hashimpura, a neighbourhood in Meerut, Uttar Pradesh in the summer of 1987. In so doing, he described the events that unfolded in Hashimpura as the ‘targeted killing’ of ‘members of a particular minority community.’ The judicial recognition of targeted violence in contemporary Indian society forms the focus of the present article. The article contends that Muralidhar J’s reference to targeted violence paves way for the recognition of an important juridical concept that warrants further academic and legal engagement. By adopting a relational approach, I argue that the conceptual utility of the category of targeted violence lies in its ability to unmask the social relations that it implicates. Targeted violence is not aimed at individual actors, but social relations between perpetrators, individual victims and those who share the victims’ minority identity. Committed to the legal recognition of social experiences, I demonstrate how the category of targeted violence accurately reflects the experiences of and relations between different social actors. I further build a case for why and how legal and judicial responses to targeted violence ought to be informed and shaped by a recognition of its relational harms.

     

Interpreting the Politics of the Judiciary: The British Senior Judicial Tradition and the Pre‐emptive Turn in Criminal Justice

This article presents an interpretive politics of the judiciary, arguing for the value of interpretive political analysis in understanding developments in case law and judicial activity. It sketches out a senior judicial tradition, which is argued to guide but not predetermine the actions of the British senior judiciary. A case study, the senior judiciary's response to the Imprisonment for Public Protection (IPP) sentence, is presented, drawing on case law, extra‐judicial speeches, and interviews with five serving or retired senior judges. It is argued that this demonstrates the senior judiciary to be politically attuned actors, often highly sensitive to the broader context, while equally determined to act with fidelity to the law and the responsibilities inherent in an independent, impartial judiciary. The IPP case law suggests that the senior judicial tradition, and its inherent tensions, limits the extent to which the senior judiciary feel equipped to oppose the ‘pre‐emptive turn’ in criminal justice.     

Towards a Theory of Institutionalized Judicial Exceptionalism

What happens when the exception becomes the norm, what happens when the law becomes a form for that which cannot have a legal form, that is, the political? The focus of this article is a form of power politics that is institutionalised and set up to work side by side with the existing legal system as a sort of normalized, co‐ordinated court procedure, initiated with the aim of subjecting specific groups (terrorists, criminals) to extended regulatory control and enforcement. These strategic bureaucratic mechanisms of exclusion appear as security enforced measures, which side by side with the existing ‘normal’ legal system govern a specific judicial‐political area. The normalised (or rooted, if one wishes) incorporation of extra‐judicial authority within the legal system will in the article be refered to as institutionalised judicial exceptionalism. The purpose of the article is to theorise and conceptualise the in many ways murky or indistinct phenomenon of institutionalised judicial exceptionalism.This task includes suggesting a model capable of assimilating within its theory the displacement in the relationship between the state, the law and the citizen that stems from the fact that the ever more securitized discourses on terrorism and crime increasingly take priority over the ordinarily non‐derogable principle of equality before the law.     

计算法学:展开维度、发展趋向与视域前瞻

在大数据时代的开放结构中,计算法学延伸了实证法学研究的知性体系和学科范畴,使法学研究迈向了更为纵深、更为宽广的畛域。计算法学在方法论上的基本立场深嵌于法学与社会科学的交叉研究范式中,如司法政治学、法社会学、犯罪学等。在计算法学方兴未艾之际,对这些学科研究主题及其理念分殊进行梳理和总结也就尤有意义。从既有的域外研究成果来看,计算法学研究的方法运用逐渐趋向科学成熟,研究视域不断拓宽,数据驱动与算法驱动多维推进,研究模式呈现出跨学科合作趋向。计算法学研究虽然在中国尚处于起步阶段,但是法律实务界和各大高校追摹大数据前沿的脚步从未停歇,计算法学在中国未来的发展也是可期可盼的。