When Culture Means Gender: Issues of Cultural Defence in the English Courts

The use of cultural defence has been much discussed in the American context and has figured as one of the areas of concern in feminist assessments of multiculturalism. This paper examines two categories of cases from the English courts, those where cultural context has been seen as significant in interpreting the actions of female defendants, and those where 'culture' is invoked to explain severe acts of violence against women. It argues that cultural arguments become available to female defendants mainly when they conform to stereotypical images of the subservient non-Western wife. They have not, on the whole, been successfully employed by male defendants to mitigate crimes against women, though there are troubling exceptions. The larger problem is that mainstream culture itself promotes a gendered understanding of agency and responsibility, as when it perceives men as understandably incensed by the sexual behaviour of their women, or women as less responsible for their actions because of the influence of men. The conclusion is that the uses and abuses of cultural defence highlight issues that have wider provenance, for it is when cultural arguments resonate with mainstream conventions that they have proved most effective.     

Comparative Law for Legal Translation: Through Multiple Perspectives to Multidimensional Knowledge

With this paper, I suggest a multiperspectivist approach for assessing conceptual legal knowledge with relevance for the translation of legal terms in translation between two or more different legal systems. The basic quest is to present a set of categories and analytical approaches for legal translators to generate (collect) and classify knowledge necessary for their professional conceptual needs. In this paper, I will focus on the translational, juridical, and cognitive basics of such an approach. In order to cope with the broad range of possible translational purposes in different translational situations and choose relevantly between alternative formulations, translators need methods and strategies in order to construct the necessary conceptual knowledge. This presupposes a broad knowledge structured in ways that enable the translator to recognize relevant characteristics of legal systems and relevant differences between different legal systems. Concerning translational theory, the basis is the functional theory of translation as adapted to legal translation, based upon the idea of translation as choice between alternatives and distinguishing between documentary translation, at one end of a scale, and instrumental translation, at the other. This basis and the distinction presuppose relevant knowledge from comparative law. Hence, existing approaches and fundamental tenets concerning comparative law inside and outside of translation are presented. In order for knowledge to be presented in a manageable way with relevance to translators, I work with the approach of concept frames as basic unit of knowledge gathering and categorization. This way of presenting knowledge is embedded more generally in a knowledge communication approach, focusing on knowledge asymmetry. Within this general framework, the multiperspectivist approach combines insights from cultural studies (especially the study of law-as-culture), law as a disciplinary social system, and communicative interaction generating meanings in legal communication, also across national borders.

     

Avowal and Criminal Accusation

In his work on truth telling, avowal and juridical processes, Foucault alerts us to legal ‘apparatuses’ that demand certain ways of speaking the truth and the sorts of subjects these recursively produce. This paper explores the role of truth telling in a specific context; namely, ‘criminal’ accusation as instanced by the agora-like processes that enabled Socrates’ notorious accusation for impiety, his defence and the resultant death sentence. Through this analysis, I seek to highlight elements of truth telling required by accusatorial apparatuses that prefigured criminal justice. By examining selected texts detailing Socrates’ trial, I will indicate several aspects of accusation and an exclusionary political logic to which it has long been attached.     

穿行于理想和现实之间的平衡--从法律文化的视角解读"法律效果和社会效果的统一"

"法律效果与社会效果的统一"这一司法政策的出台是伴随着中国司法改革的深入而日渐成熟的,从法律文化的视角对该项司法政策进行评述,就会发现,该政策既有存在的深厚文化土壤,又具有存在的客观必要性,是在理想与现实中寻求平衡的司法选择.     

Legal Typologies and Topologies: The Construction of Indigenous Alterity and Its Spatialization Within the Colombian Constitutional Court

This article examines the different legal articulations between indigenous typologies and topologies, that is, the relationship between someone classified as an indigenous subject, a grantee of minority rights, and the spatial arrangements such as reservations or ancestral territories considered necessary for indigenous “cultural survival.” I analyze how the jurisprudence of the Colombian Constitutional Court manifests and rests on the diverse combinations of these two factors. The typology/topology binary characterizes the manner in which these legal discourses portray indigeneity and culture. This binary also offers insight into a broad range of issues, including the access that indigenous peoples have to minority rights, the use of customary law, and the spatial delimitations that frame indigenous legal jurisdictions. Some of the complexities that arise from this binary are: the conceptualization of indigenous places as habitats, the idea of culture as a list of traits, and the concept of “degrees” of indigeneity that determine these peoples' access to minority rights.     

Oubliez Critique

Critique has been shaped according to legal protocols and techniques. From Kant to Hegel and Marx, critics have tended to adopt one of the roles available in court procedure. This internal connection is most evident in American CLS of a psychoanalytical nature. If critique recognises itself in the juridical, psychoanalysis asks us to believe in the law. British critical legal scholars have followed a more political and aesthetic strategy, which today may ask us to abandon traditional critique for acts of critical resistance.     

The Decisional Juridical Discourse of the Appellate Body of the WTO: Among Treaties and Dictionaries as Referents

This present paper is devoted to the analysis of the decisional juridical discourses of the Appellate Body of the World Trade Organization. For this end, we decided to develop the research around two poles which shall be approached in an interweaving manner: the first concerns an examination of the methods of interpretation adopted by the Appellate Body and the second, which is a consequence of the former, devotes itself to the problem derived from the interpretation of authentic international treaties in more than one language. In the light of these two approaches we can verify that the interpretation of the Appellate Body is highly influenced by the search for the purpose of the text and the construction of the juridical discourse in question is made with reference to the linguistic system analyzed as a dictionary. It was established, that the Appellate Body carries out a dictionary interpretation with a tendency, even incipient, to consider the linguistic versions of the World Trade Organization Agreements. Finally, the task is structured having as a backdrop two interdependent concepts which should not be neglected in an analysis of international juridical discourses. They are the following: ?juridical culture’ and ?language’. Both will be dealt with from a semiotic perspective since the central element of our study – and of the intersection between these two concepts – is the linguistic sign.     

Inclusive Legal Positivism,Legal Interpretation,and Value‐Judgments

In this paper I put forward some arguments in defence of inclusive legal positivism. The general thesis that I defend is that inclusive positivism represents a more fruitful and interesting research program than that proposed by exclusive positivism. I introduce two arguments connected with legal interpretation in favour of my thesis. However, my opinion is that inclusive positivism does not sufficiently succeed in estranging itself from the more traditional legal positivist conceptions. This is the case, for instance, with regard to the value‐freedom principle, which is commonly accepted by inclusive positivist scholars. In contrast with this approach, I try to show, in the concluding section, how a constructivistic version of inclusive positivism could legitimately acknowledge the presence of value‐judgments in the cognitive activities of jurists and legal theorists.     

The idea of a trust in Zoroastrian law

There is hardly any legal institution which better characterizes the thinking and everyday practice of the common law family than the legal institution of the trust. The English common law developed it during the Middle Ages, and it remains popular to this day. The institution of the trust is a unique phenomenon of the common law. Surprisingly, the Zoroastrian community of the Sassanian period in Persia developed some legal techniques which are very close to the common law trust. In this paper I will show the peculiarities and history of what I call the Zoroastrian trust, and hope to establish the basic similarity between the two. What makes this comparison easier is the fact that the two legal institutions developed independently from each other, since there is no possibility of historical interactions between Sassanian Persia (third–seventh centuries AD) and England during the Middle Ages. It is also impossible to speak about common or similar religious, cultural and legal backgrounds.     

Field Theory,Cultural Capital,and the First Amendment: Two Paradoxes in the Legitimation of News

Does law influence the legitimation of news? I examine legitimations offered during ethics debates about news stories in which private people are thrust into the media spotlight. When navigating the space between what can be published lawfully and what should be published, journalism organizations offer legitimations that vary in ways that reflect the hierarchy of legal frameworks for decision. According to field theory, the cultural capital of the juridical field is constitutive of status hierarchies in the journalism field, even though the First Amendment leaves journalism to structure itself. This structuring leads to two paradoxes. First, in the performance of negative legitimation, news organizations justify ethics violations by converting the minimum standard of lawful speech into claimsmaking about laudable speech. Second, in acts of displacing legitimation, reporters suggest that more publicity is the remedy for invading privacy, translating the valorization of speech rights over privacy rights into a puzzling norm.     

Uberrima Fides, Foucault and the Security of Uncertainty

Uberrima Fides is a legal doctrine that governs insurance contracts and expects all parties to the insurance agreement to act in good faith by declaring all material facts relative to a policy. The doctrine originated in England in 1766 with the case Carter v Boehm ruled by Lord Mansfield. Ever since, it has become, with some differences in interpretation, a cornerstone of insurance relationships around the world. The role that trust plays within it, however, is not simple and should not be taken for granted. While it is expected that an idea of trust represents an order of truth, trust in itself is the outcome of a complex negotiation of moral orders. Semiotically, trust operates here not as a Kantian category for the understanding but as a signifier of an order of truth that upholds the possibility for insurance relationships. Trust, as sign, operates as a condition of possibility for the performance of insurance. In this article, a Foucaultian approach is employed to problematise the idea of trust and its role in insurance relationships. The case of mis-selling of insurance policies in the United Kingdom since the 1980s, which has given rise to numerous legal rulings, is used as the empirical site for the problematisation.     

Legal Order,Legal Pluralism,Fundamental Principles. Europe and Its Law in Three Concepts

The essay analyses the way in which the concepts of legal order, legal pluralism and fundamental rights have been used to describe (and decide) what European integration is (and what it ought to be) from the perspective of the law. The essay does not provide a legal theory but limits itself to investigating how certain concepts have been employed to justify legal decisions and to construct legal theories. The juridical discourse on Europe is examined to identify some trends in contemporary legal culture: the decline of a tradition of legal thought, ‘legal dogmatics,’ the vanishing of the distinction between internal and external law (between domestic law and international law, and between positive law and morality), the growing importance of fundamental rights discourse, the centrality of balancing test, the widespread criticism of legal science's claim to neutrality and the consequent normative turn affecting legal scholarship.     

和谐社会呼唤文化和谐

构建社会主义和谐社会需要文化和谐,文化和谐是文化自身及文化同政治、经济、社会之间相互协调的存在与发展状态。然而,在中国式的社会主义市场经济建设中,在现代化的进程中,尚有一些文化不和谐现象,这是构建和谐社会的障碍。文化建设的种种束缚与文化不和谐现象,要求我们必须对文化作出重新思考、重新选择并积极应对,创造文化与社会的和谐状态,以达到我们的既定目标。     

Legal Weapons for the Weak? Democratizing the Force of Words in an Uncivil Society

First Amendment absolutists and proponents of speech regulation are locked in a normative stalemate over the best way to diminish racial "hate speech." I argue that this stalemate can be overcome by considering a more expansive theory of the "force of words" and the risks the right of free speech entails for individuals. Drawing on a cultural theory of symbolic power, I discuss the merits and limitations of two recent texts which redefine hate speech as discriminatory conduct. As an alternative to this strategy, I develop an analytical framework for describing the social risks the right of free speech entails, and propose juridical and deliberative-democratic remedies that might redistribute and attenuate these risks. Cultural and legal theory can find common ground in the analysis of the undemocratic effects of symbolic power. Such common ground can be achieved if legal theorists consider the force of words as a problem for democracy and if cultural theorists consider the resources provided by democratic institutions and practices for the redistribution of the social risks of speech     

Forms of Authority Beyond the Neoliberal State: Sovereignty,Politics and Aesthetics

Critical legal scholarship has recently turned to consider the form, mode and role of law in neoliberal governance. A central theme guiding much of this literature is the importance of understanding neoliberalism as not only a political or economic phenomenon, but also an inherently juridical one. This article builds on these conceptualisations of neoliberalism in turning to explore the wider historical, cultural and sociological contexts which inform the production of neoliberal authority. The papers in this collection were first presented at the symposium ‘Forms of authority beyond the neoliberal state’, held at the Griffith Law School in December 2017. They consider the role of the corporation, the site of the university, the politics of debt, the genre of prestige television, and the archic sources of state violence, in order to imagine forms of authority which lie beyond neoliberalism as an ideology and a set of practices, and the ensemble of institutions which constitute the neoliberal state. The contributions draw on social theory, philosophy, cultural studies, legal geography and political theology in exploring new possibilities for cultivating judgement through and beyond the sovereign, political and aesthetic terrains of neoliberal governance.     

American Indian Tribes: ``Not as Belonging to But as Existing Within'

This article is an extended analysis of the historyand anomalies in the doctrine of American Indiantribal sovereignty. I explain that America gainedindependence, but took Indian land and colonized thetribes just as it had been colonized under theBritish. It asserted sovereignty for itself, butsubordinated the once independent tribes with aparadoxical semi-sovereign status as `dependentdomestic nations', all of this justified by the racialand cultural otherness of Indians. Using a Lacanianperspective, I show that America was founded on a`wound' or inconsistency at the heart of itsideological and constitutional order. In order torectify the inconsistencies that the initial `wound'produces, the law and political order havecontinuously had to adopt fictions (legal and racial). American law and policy has never been able to settlethe ambiguous doctrine of Indian sovereignty. As aresult, the law circles round and round in trying todefine it, and asserting and denying it, all in anunsuccessful attempt to make the constitutional orderwhole. It cannot succeed, however, since the ultimatesolution is an American sovereignty which, like God,admits of no limitation.     

方法、思路与问题——评《中西法律文化比较研究》(第三版)

以《中西法律文化比较研究》一书为例,探讨研究者如何从类型学的角度比较中西法律文化,指出其成功之处在于揭示了两种文化的类型特征,局限在于忽略了研究对象的复杂性,并为完善这些类型提供了思路;接着指出研究者在寻求中国传统法律文化与现代法制的联系时所怀有的是一种理解与沟通的心态,并对其观点和论据进行了分析与批判;最后清理了研究者运用中国古人的世界观会通中西法律文化的思路,从中探寻研究者从激进主义向文化守成主义转变的现象和原因。     

Truth and Consequences: Law,Myth and Metaphor in American Indian Contested Adoption

This article considers the effects of the operations of myth and metaphor on law through a comparison of a United States Supreme Court decision and a novel that deal with the contested trans-racial adoption of an American Indian child. It argues that the United States founding myth of Manifest Destiny—of the divinely ordained fate of the continent to host a (white) Christian state—is determinative of the way in which legal decisions regarding American Indians are made. The myth of Manifest Destiny contains a metaphor of vanished American Indians, such that contemporary American Indians are rendered nearly invisible and whose existence is not easily absorbed into the working of the American legal system. The American Indian Child Welfare Act provides protections against assimilation for indigenous families and community, thus working at cross-purposes to the ultimate aim of Manifest Destiny. What happens in those instances when legal provisions and interpretation run counter to Manifest Destiny? Through the consideration of the situation of a contested adoption, this article reveals the heavy influence of Manifest Destiny in the Supreme Court decision, which is counter to the vision of a pluralistic culture envisioned in both the novel and the Indian Child Welfare Act (ICWA) itself. The consequences of legal resistance to ICWA for American Indian communities and as to the operation of the legal system itself are discussed.     

David Dyzenhaus and the Holy Grail

Abstract
In his book Hard Cases in Wicked Legal Systems David Dyzenhaus aims to provide a cogent refutation of legal positivism, and thus to settle a very old dispute in jurisprudence. His claim is that the consequences for practice and for morality if judges adopt positivist ideas in a wicked legal system are unacceptable. He discusses the South African legal system as a case in point. I argue that this claim is not secured. Dyzenhaus has three arguments for his view. The first is that positivism cannot account for legal principles, and legal principles are the key source of morally acceptable adjudication. I show that his argument does not go through for sophisticated positivist accounts of "principles" such as those of J. Raz and D. N. MacCormick. Dyzenhaus's second argument claims to find a pragmatic contradiction in positivism, between the belief in judicial discretion and the belief in a commitment to legislative sources as binding fact. I argue that there is no such commitment in a form that supports Dyzenhaus's theory. His final argument is that wicked legal systems are contrary to the very idea of law and legality. I argue that a strong doctrine of deference to legislative authority cannot be bad in itself: It can only be bad relative to a certain content to legislation. Thus Dyzenhaus's claim begs the question against positivism.