Hidden Law‐Making in the Province of Medical Jurisprudence

Judges articulate their role in controversial cases of medical ethics in terms of deference to Parliament, lest their personal morality be improperly brought to bear. This hides a wide range of law‐making activities, as parliamentary sovereignty is diffused by ‘intermediate law‐makers’, and judicial activity is more subtle than the deference account implies. The nature of litigation raises questions about the contributions of other legal personnel and also the nature of the parties' interests in test‐cases. While judges demonstrate an awareness of some of these issues and anxiety about the constitutional legitimacy of their work, a more nuanced account is needed of their proper role. This may be built on Austin's theory of tacit legislation. It may draw from human rights law. However, considerable work is required before the complexities of hidden law‐making can be properly incorporated into the province of medical jurisprudence.     

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.     

A historical institutionalist view on merging LULUCF and REDD+ in a post-2020 climate agreement

In the context of the UNFCCC negotiation process on a global climate agreement, policy makers are looking for approaches on how to significantly raise the mitigation ambition of all relevant sectors, including the land use sector. Aside of the formal negotiations some Parties to the UNFCCC have started an informal dialogue and discuss how to merge the fragmented accounting rules for mitigation relevant land use activities, in particular those concerning forest-sector emissions. Stressing that ‘history matters’, we use a historical institutionalist perspective to assess the institutional pathways of the different accounting rules for developed and developing countries, their mutual relationship, and in how far they are supportive or counterproductive for this endeavour. Our empirical analysis shows that Parties tend to use any modification phase in the negotiation process to water down already achieved agreements, and that negotiating modalities after targets have been agreed is not conducive either. In the efforts of specifying the Paris agreement, merging existing rules into a common accounting framework is likely to further compromise the exisiting weak rules and modalities, and potentially what negotiators consider as ‘environmental integrity’. With this, a formal negotiation of common rules for the accounting of the land use sector may yield an outcome below what has been achieved since the negotiations on a post-2020 agreement started in 2005. We conclude that politically acceptable approaches for the land use sector that also contribute to the overall objective of raising ambition should avoid reopening already agreed decisions on rules and modalities.     

The Proposed ‘Common European Sales Law’: Legal Framework and the Agreement of the Parties

The European Commission's Proposal for a Regulation on a Common European Sales Law (‘CESL’) seeks to create a European scheme of contract law available for parties to choose to govern cross‐border contracts for the sale of goods, supply of ‘digital content,’ and for the supply of related services. This article explains the background to the Proposal, sketches out the purposes and scope of the CESL, and considers and criticises its legal framework (and in particular its relationship with private international law) and the key requirement of the parties’ agreement. In the author's view, the CESL scheme remains an unconvincing basis for the achievement of its economic purposes and, as regards consumer contracts, puts too much reliance on the agreement of the consumer as a justification for the loss of their existing protection under EU private international law rules.     

“需要国家干预说”的法哲学分析

“需要国家干预说”是 20世纪中国经济法学最重要的学说之一。有限理性假设、国家适度干预、经济民主、社会公平、经济法治是其基本的法哲学叙事立场。国家是干预需要的满足者,“需要”是通过干预重建经济自由秩序的法律理由。国家超越市场利益关系对经济进行干预调节,国家干预由此构成经济法的基本哲学范畴与法理标志。经济宪政哲学是国家干预经济的法哲学进路,通过经济民主机制设定的干预才能避免经济专制,国家与社会成员共同分享经济权力才能保障干预的社会性与民主性,干预的达成并非一定为了公共,公共中的个体主义是结成公共的价值指引。     

我国女性主义法学研究的回顾与展望

女性问题的跨意识形态性、我国法律现代化进程的不可逆性与女性主义法学本身的批判性和进步性,决定了在我国开启以“性别与法律”为主旨的女性主义法学研究的重要理论和实践价值.目前,我国在研究的学科类别上,已形成法理学为主导,部门法共同参与的局面;在研究基地和社会影响上,已形成以中国社科院法学所为重镇,各地高校与研究机构积极参与和推动的格局;在研究问题上,已在认识论和法律事实两个层面形成多样议题.但是,法学认识论层面的研究不足、女性主义法学研究的边缘化、研究者尚未形成统一的研究立场和研究队伍学科背景单一等问题也掣肘着女性主义法学的发展.法学研究者需通过不断拓展法学认识论研究,积极结合中国现实吸纳新知、超越意识形态客观审视西方社会理论,加强与其他学科的合作等方式,共同推动我国女性主义法学研究的发展.     

论实现代位求偿权的条件

本文针对理论界存在的保险人对被保险人就非常保险责任范围内的赔偿可以取得代位求偿权的观点 ,对保险业中的代位求偿权和新合同法中规定的代位权的法律性质进行了分析研究。认为 ,保险业中的代位求偿权与新合法规定的代位权是两个不同的法律概念 ,作者提出非保险责任范围的赔偿依法不产生代位求偿权。     

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.     

国际法上的“强行法”规范初探

国际法上的"强行法"规范是指由全体国际社会成员所公认且在缔约时不能贬损的那些国际法律规范,对此类规范的存在,国际社会已经形成普遍共识;其最初适用范围仅仅限于国家的缔约行为,但随后逐渐及于其它国家行为;国际法学说、条约及国际司法实践初步确认了某些具体的规则具有"强行法"规范的性质,但关于"强行法"的更为明确或具体的范畴问题,国际社会远未达成普遍共识,因而在"强行法"规范的识别及具体适用上存在相当困难;经过深入的国际法理论研究和有力倡导以及长期的国际法实践的推演,国际法上的"强行法"规范更有可能通过习惯国际法的方式加以产生;在条件成就时,再由习惯国际法规则演变或制定为条约国际法规则。     

Massively parallel sequencing and the emergence of forensic genomics: Defining the policy and legal issues for law enforcement

Use of DNA in forensic science will be significantly influenced by new technology in coming years. Massively parallel sequencing and forensic genomics will hasten the broadening of forensic DNA analysis beyond short tandem repeats for identity towards a wider array of genetic markers, in applications as diverse as predictive phenotyping, ancestry assignment, and full mitochondrial genome analysis. With these new applications come a range of legal and policy implications, as forensic science touches on areas as diverse as ‘big data’, privacy and protected health information. Although these applications have the potential to make a more immediate and decisive forensic intelligence contribution to criminal investigations, they raise policy issues that will require detailed consideration if this potential is to be realised. The purpose of this paper is to identify the scope of the issues that will confront forensic and user communities.     

How Does the European Court of Justice Reason? A Review Essay on the Legal Reasoning of the European Court of Justice

This review essay analyses two significant recent contributions to the debate over the reasoning of the Court of Justice (CJ). These contributions highlight the impossibility of a wholly scientific and deductive approach to attributing ‘correct’ outcomes to the Court's case‐law. At the same time, their analysis adds significant findings for the debate over the Court's possible ‘activist’ or political role. Following from these contributions, this essay makes two arguments: firstly, that the inability of the Court to anchor its reasoning solely in a deductive form of legal reasoning should encourage the CJ to engage in a more advanced ‘constitutional dialogue’ with the EU's political institutions; and secondly, that truly understanding the Court's reasoning involves a closer analysis of the institutional and personal dynamics influencing Court decisions. Understanding European judicial reasoning may require a closer look at the social and political—as well as doctrinal—context within which European judges act.     

Countries start to explain how their climate contributions are fair: more rigour needed

In the lead-up to the Paris Agreement, every country was invited to submit an intended nationally determined contribution (INDC), and indicate how it is fair. We analyse how countries have explained the equity of mitigation and adaptation in 163 INDCs, providing a bottom-up analysis of equity to complement a literature that has focused on top-down allocations. While no single indicator of equity was used by all INDCs, a menu of quantified indicators or tiered approaches could provide bounded flexibility across different national circumstances. The most common equity indicator used in mitigation INDCs is the country’s ‘small share’ of global emissions, followed by per capita emissions. The emissions of individual ‘small share’ INDCs add up to 24% of annual global emissions when using a consistent data set. Per capita emissions are used across a range of countries with low (0.5) to high (25 t CO₂–eq per capita) values for that indicator. Adaptation is included in 89% of INDCs, of which more than half quantify impacts in some manner, and two-thirds use vulnerability as an equity argument. Broadly, we find that most claims to equity are either unsubstantiated or drawn from analysis by in-country experts. Only two INDCs refer to independent evidence, and none consider the consequences of their approach when applied to all countries. Given that the aggregate effect of INDCs will not be sufficient to keep global temperature increase well below 2 °C, and even less to keep temperature below a 1.5 °C rise, the INDCs have distributional implications. More rigorous information is needed to assess relative fair shares, which could be provided officially in future nationally determined contributions (NDCs). Absent improved information, it is likely that researchers and civil society will continue to assess informally what could be considered fair. A hybrid approach to equity—combining bottom-up assessment and top-down allocation—would be consistent with the hybrid architecture of the Paris Agreement, which comprises bottom-up elements such as NDCs and top-down elements such as global goals. Improved information on equity in NDCs will be an important input to the global stocktake ‘in the light of equity’.     

‘Factual causation’ and ‘scope of liability’: What's the difference?

According to a dominant view, for the negligent defendant to be held liable for the plaintiff's harm the plaintiff must establish first, that the breach was the ‘factual cause’ of the harm, and second, that the harm is within the ‘scope of liability’. On this view, factual causation is purely factual, while scope of liability is normative and non‐causal. This article accepts the basic two‐step approach, but argues that the distinction is overstated. A close analysis of the principles shows that factual causation may require value judgment, and that scope of liability often involves an assessment of the strength and nature of the causal connection between breach and harm.     

It Ain't Necessarily So: A Legal Realist Perspective on the Law of Agency Work

Analysis of UK employment and labour law is often characterised by a curious dissonance. The overarching narrative mandates that labour law is a countervailing force to the inequality of bargaining power, embedded with values and assumptions concerning the nature of employment relations and the role of labour law. And yet, labour law jurisprudence tends to treat with respect, and seeks to decipher, abstract statutory concepts and tests derived from judicial pronouncements as if they were, indeed, a ‘brooding omnipresence in the sky’. This paper seeks to bridge that gap, by offering a legal realist account of the legal doctrine that governs the employment of agency workers, focusing on the ‘necessity’ and ‘sham’ tests. It assesses the legitimacy of importing legal tests from one (commercial) context to another (employment) context; questions the courts’ protestations that their use is mandated by precedent; and outlines the real implications for the status and rights of agency workers in the UK.     

Changing the immigration rules and withdrawing the ‘currency’ of legal aid: the impact of LASPO 2012 on migrants and their families

The provisions of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO 2012) will remove almost all immigration cases from the scope of legal aid with effect from 1 April 2013. Part One of this paper describes the expected changes LASPO 2012 will make and then explores their anticipated impact. It explains that large numbers of migrants and their family members are likely to be without legal advice and representation after April 2013, including in cases where the state-enforced removal or deportation from the UK of a parent is contemplated, with the consequence of separating parent from child. Part Two explores the possibility that an ‘exceptional case determination’ might provide a route back into legal aid funding, and finds that this is likely to be restricted, in immigration cases, to those making applications relying on Article 8 ECHR and who can demonstrate a particular and individual requirement for legal aid. Part Three explores the rationale for these changes, and concerns about access to justice for migrants and their family members in cases involving acute interference with rights to family and private life. It places these concerns in context, specifically the fundamental and restrictive amendments to the Immigration Rules relating to family migration introduced from July 2012. These amendments are enormously complex and their full legal implications have yet to be tested in the higher courts. Part Four questions whether the changes will in fact achieve their stated aim of cost savings or whether the costs will simply be transferred to other parts of the State (especially to the Tribunal system, in dealing with litigants in person). The paper additionally questions, in Part Five, whether the regulators are equipped to regulate the quality of the fee-charging immigration advice services to which at least some individuals will turn. The paper concludes that, at the very least, it is particularly harsh that the Government has removed the ‘currency’ of legal aid at this time, so that those with limited financial resources have neither access to legal aid advice about the meaning of those Rules nor legal aid representation to test their proper interpretation.     

Metadata Retention as a Means of Combatting Terrorism and Organised Crime: A Perspective from Australia

On October 13, 2015, new laws came into force in Australia requiring telecommunications service providers to retain and store their ‘metadata’ for 2 years so that it remains available for analysis by anti-terrorism strategists and organised crime fighters. But there are ongoing issues associated with this legislative approach, including the threats to privacy thereby, and concerns that the retention system can be circumvented entirely. This paper will outline the legal and criminological questions that need to be explored in order to help policymakers work through these issues so that an appropriate balance can be struck between forestalling crime and terrorism using all available electronic means, and not unduly curtailing the legitimate rights to privacy that citizens in modern democracies currently expect to enjoy.     

It’s a man’s world: barriers to gender transformation in the South African judiciary. Perspectives from women advocates and attorneys

The judiciary in South Africa has made great strides in creating a diverse bench. However challenges continue as regards the appointment of women, some of which are attributable to the nature of the legal profession. Currently, there are 86 women judges in the Superior Courts nationally out of a total of 243. Judges are drawn from the professions of advocates, attorneys, magistracy and academia. Women in these areas of law are confronted with issues that have a bearing on any aspirations of future accession to the judicial bench. The aim of this article is to analyse two specific challenges faced by women advocates and attorneys that were identified over the course of the last three years through legal sector meetings. These are the unequal distribution of work and discriminatory perceptions of women’s abilities. I argue that the two factors are directly related to the inadequate representation of women on the bench. My argument will be informed by, amongst others, dialogues from the legal sector meetings, observations of the judicial appointments process and desktop research. I conclude that failing to engage with the identified obstacles will negate any efforts to further increase the number of women judges.     

The Human Rights Act and Legal Culture: The Judiciary and the Legal Profession

The purpose of this article is to consider the effect the United Kingdom’s currently prevailing legal culture is likely to have on the realization of cultural change presaged by the Human Rights Act. The article is in five parts. The first two address the preliminary questions: what is meant by ‘legal culture’ for these purposes, and what type of ‘human rights culture’ does the Human Rights Act envisage? The answers define the scope of the remainder of the article’s inquiry into the ways in which the Act itself and the culture of the United Kingdom legal profession and judiciary are likely to interact. The third part of the article identifies some examples of the sorts of culturally specific aspects of current legal practice which are likely to operate as serious practical constraints on the emergence of a human rights culture worthy of the name, before the fourth part considers what sorts of cultural changes will be required of judges and lawyers for the presaged cultural transformation to come about. Finally, the article asks whether there is any reason to believe that courts and lawyers can find from within their present culture the resources to bring about the necessary shift.     

Challenging normative constructions of parentage in Ireland

Legal conceptions of the family have evolved considerably in recent years. Many legal systems now offer recognition to what are commonly termed ‘non-traditional’ families, namely those that fall outside of the ‘sexual family’ ideal. Such reforms are certainly encouraging but they may nonetheless be criticised on the basis that they promote a heteronormative construction of the family rather than providing an innovative new perspective on modern family relationships. Using recent Irish reforms as the basis for the discussion, this article will examine the normative approach to family recognition which has been adopted in both Ireland and England and Wales and it will question whether those legal systems adequately accommodate families which fall outside the normative ideal. Where failings are identified, suggestions are presented as to how the law could be modified so as to fully accommodate ‘non-traditional’ families, in particular gay and lesbian families.     

对盗窃在他人保管之下的本人财物行为的刑法评价

对盗窃在他人保管之下的本人财物行为如何定性,涉及财产罪保护法益范围、盗窃罪故意与非法占有目的内容以及《刑法》第91条第二款的理解等刑法理论问题。合法占有权并非一概都能对抗所有权,对盗窃在他人保管之下的本人财物行为,如果没有索赔或接受赔偿不能构成盗窃罪;反之,如果又进行索赔或接受赔偿的则构成盗窃罪。