Case Law Tradition and China＇s Legal System

中华法系是中国古代法律体系的一种总括性称谓。在此概念下包括着中国历史上形成的法律传统的方方面面。作为一种自成体系的法律体系,中国古代判例法制度构成了其中的一个内容,也是中华法系的一个特质。传统中国判例法在模式上出现成文法典与非成文法典下两种,其中主要是成文法典下的判例法。传统判例法在类型上有创制型、补充型和解释型,在作用上有作为判决依据、法律适用论证依据和立法依据,论证类型上有比类推理和高度伦理性说理,在整体上体现出有较为完善的逻辑结构、分类具体适用等。总之,中国传统判例法在类型上、作用上、适用上都体现出不同于近代普通法系下的判例法特点。     

Vulnerabilities in China’s Legal System

Social Justice Research -     

The Legal Subject in Althusser’s Political Theory

There are three dominant conceptual developments in Althusser’s work that suggest the significance of the subject. One is the perpetual work of ideology—its interpellation of individuals. The second is the primacy of the class struggle in relation to the state, and the consequential function of law and rights. The third is the materialism of the encounter as a process without subject. An examination of these three areas (in part, utilising a Foucauldian analysis of subjectivity and power relations) reveals the potentially and strategically important role of legal subjectivity in Althusser’s theory of the political.     

Law’s Determinability: Indeterminacy,Interpretative Authority,and the International Legal System

Netherlands International Law Review - Authority claims remain rooted in the antecedent existence of a degree of indeterminacy, in particular in the international legal system, in which a lack of...     

Intracultural Awareness in Legal Language—Silvio Berlusconi’s Iconography of Law

Against the assumption that legal and normative systems are coextensive with geopolitical units and national spaces, the article advocates for the need to study how different legal and normative semiospheres, within the same geopolitical unit and national space, often give rise to ‘normolects’ that are transversal to socio-economic classes, ethnicities, and cultural lifestyles. The concept of legal and normative ‘imaginaries’ is useful to come to terms with the legal and normative semiotic ideology of such normolects, including their non-verbal dimension and legal-normative semiotic ideologies. More generally, the article prompts legal scholars, and particularly semioticians of law, not to focus exclusively on inter-cultural awareness in legal-normative language but to concentrate also on intra-cultural awareness. As a case study, the article analyses a drawing through which the former Italian Prime Minister Silvio Berlusconi visualized and advertised for a bill of reform of the Italian judicial system by his Minister of Justice, Angelino Alfano. The semiotic analysis of this visual artifact casts new light on the controversial political and judicial figure of Mr Berlusconi. The drawing is read as a visual embodiment of the conflict between two different legal and normative ideologies within the present-day Italian political and judicial arena. The paradoxes that underpin this iconography of law and mar a rational confrontation of legal-normative arguments in contemporary Italy are uncovered.     

Criminal Justice Reform and the System’s Efficiency

This article discusses key issues that affect the efficiency and credibility of criminal justice systems. It discusses the consequences of an ineffective criminal justice system, which include unnecessary delays within the court process, ‘cracked’ or ‘collapsed’ trials, and lack of public confidence. It notes that a successful system must contain strategic, integrated, and sustainable mechanisms that enhance the entire criminal justice process. The article examines a number of initiatives taken by various countries, noting the measurable and sustainable results, while also suggesting ways that these programs could be improved. Finally, the author notes the importance of measuring the outcomes and impact of the suggested initiatives in an effort to promote transparency and accountability, as well as effectively record successful strategies.     

What is the Theory Legal Argumentation For?

The paper aims to present the legal theories of legal argumentation constructed in the last century, organised into two groups: the precursors (Viehweg, Perelman and Toulmin) and the authors of the standard theory (MacCormick and Alexy). Then, some criticisms about all these conceptions are presented. And finally, an outline of a theory of legal argumentation is made, capable of overcoming some of the previous criticisms. The fundamental idea for this is to build a very abstract concept of argumentation that could then allow various interpretations or conceptions of legal argumentation. From here, one would be in a position to find an answer to the three main argumentative questions raised by legal practice: how to analyse an argument, how to evaluate it, how to argue.

     

Justice ‘Under’ Law: The Bodily Incarnation of Legal Conceptions Over Time

The article uses embodiment and the experiential basis of conceptual metaphor to argue for the metaphorical essence of abstract legal thought. Abstract concepts like ‘law’ and ‘justice’ need to borrow from a spatial, bodily, or physical prototype in order to be conceptualised, seen, for example, in the fact that justice preferably is found ‘under’ law. Three conceptual categories of how law is conceptualised is examined: law as an object, law as a vertical relation, and law as an area. The Google Ngram Viewer, based on the massive library of books that Google has scanned, has been used to study legally relevant conceptions over time within each of these three categories, from 1800 to 2000. In addition, the article suggests a type of analytical method of ‘metaphor triangulation,’ that is, the replacement of prevailing metaphors with unusual ones in order to increase the level of awareness of what conceptual content the prevailing metaphors involve.     

Promoting the Modernization of China’s Governance System and Capacity in Line with the Rule of Law

Since the 18th National Congress of the Communist Party of China (CPC) held in 2012, XI Jinping, General Secretary of the CPC Central Committee, has made a series of vital expositions on the promotion of modernization of the national governance system and capacity in line with the rule of law. The law is the most important tool for governing a country, and the rule of law supports the national governance process and capacity. Promoting the rule of law on all fronts is an essential requirement for developing socialism with Chinese characteristics and promoting the modernization of the national governance system and capacity. Comprehensive law-based governance in all areas should be promoted to advance the modernization of national governance. Furthermore, law-based thinking and methods should be used to address difficulties and challenges faced in this modernization process.     

History’s Challenge to Criminal Law Theory

After briefly sketching an historical account of criminal law that emphasizes its longstanding reach into social, commercial and personal life outside the core areas of criminal offenses, this paper explores why criminal law theory has never succeeded in limiting the content of criminal codes to offenses that fit the criteria of dominant theories, particularly versions of the harm principle. Early American writers on criminal law endorsed no such limiting principles to criminal law, and early American criminal law consequently was substantively broad. But even with the rise of theories in the mid-nineteenth century that sought to limit criminal law’s reach, codified offenses continued to widely and deeply regulate social life and exceed the limits of those normative arguments. This essay suggests that this practical failure of criminal law theory occurred because it was never adopted by an institutional actor that could limit offense definitions in accord with normative commitments. Legislatures are institutionally unsuited to having their policy actions limited by principled arguments, and courts passed on the opportunity to incorporate a limiting principle for criminal law once they began, in the Lochner era, actively regulating legislative decisions through Constitutional law. The one avenue through which criminal law theory has had some success in affecting criminal codes is through the influence of specialized bodies that influence legislation, especially the American Law Institute advocacy of the Model Penal Code. But the institutional structure of American criminal law policymaking permits an unusually small role for such specialized bodies, and without such an institutional mechanism, criminal law theory is likely to continue to have little effect on actual criminal codes.     

Form and Agency in Raz’s Legal Positivism

As two parts of one overarching legal positivist project, it is likely assumed that the constitutive elements of Joseph Raz’s analysis of the rule of law are compatible with his thinking on the nature of legal authority. The aim of this article is to call this assumption into question by reading Raz in light of the core, if under-recognised, preoccupation of the jurisprudence of Lon Fuller: namely, the latter’s concern to illuminate the relationship between the distinctive form of law and human agency. This not only opens up a new engagement between Raz and Fuller that was far from exhausted within debates about law and morality, but also reveals tensions between Raz’s analysis of the rule of law and his analysis of legal authority that proponents of Raz’s legal positivism need to address.     

Islamo-Arabic Culture and Women’s Law: An Introduction to the Sociology of Women’s Law in Islam

The present paper addresses the mutual relationship between society and law in shaping women’s law in Islam from the perspective of the sociology of law. It analyzes the role of pre-Islamic social, political, and economic structures in the Arabian Peninsula in modeling women’s law and highlights some customary laws which were rejected or revived and integrated in Islamic jurisprudence. In this regard, the paper reviews issues such as polygyny, rights to inheritance, marriage, the process of testimony and acceptable forms of evidence in legal matters, diyya (blood money), the exclusion of women from the judiciary and the system of issuing fatwa (legal opinion), natural right of guardianship (wilāya) of underage children after divorce, and regulations related to the veil. Finally, referring to the manner of the Prophet of Islam, the paper suggests that ?urf (custom) can be considered as a source of Islamic legislation alongside other commonly known sources of fiqh (Islamic jurisprudence).     

Responsibility and Control: Fischer’s and Ravizza’s Theory of Moral Responsibility

Law and Philosophy -     

Victor’s Justice: The Next Best Moral Theory of Criminal Punishment?

In this essay, I address one methodological aspect of Victor Tadros’s The Ends of Harm – namely, the moral character of the theory of criminal punishment it defends. First, I offer a brief reconstruction of this dimension of the argument, highlighting some of its distinctive strengths while drawing attention to particular inconsistencies. I then argue that Tadros ought to refrain from developing this approach in terms of an overly narrow understanding of the morality of harming as fully unified and reconciled under the lone heading of justice. In a final and most critical section, I offer arguments for why this reconciliatory commitment, further constrained by a misplaced emphasis on corrective justice, generates major problems for his general deterrence account of the core justification of criminal punishment.     

The Rule of Law in Today’s Africa∗

This article is based on the recent decision of the Supreme Court of Nigeria in a case involving illness resulting from the consumption of a bottled drink which contained a dead cockroach. The main issues considered were manufacturers' duty of care; the liability of a retailer in negligence; burden of proof; and causation. Evidence showed that the drink manufactured by the second respondent was sold by the first respondent to the appellant in the same condition in which it left the second respondent. The Court held that in the circumstances of the case, only the second respondent was liable to the appellant.     

Legal Responses and Sentencing in Murder Cases – A Comparison of Law and Judicial Reactions in India and Germany

While there are huge cultural, social and socio-legal differences between India and Germany, the sentencing laws of the two countries show a couple of similarities. In India and Germany alike, the substantive law makes only little specifications for the sentencing process. There are no sub-statutory sentencing guidelines, within the range provided by the penal codes the courts have a wide discretion in the sentencing process. It is, however, interesting to see that the courts exercise their discretion in similar ways which can specifically be observed in murder cases. The article describes the legal framework which is applicable in murder cases in India and Germany and compares the judicial decisions in selected cases: hold-up murder, sexually motivated murder, domestic violence killings and honor killings. The comparison gives evidence of the communicative function of punishment. After a serious crime like murder the public – typically well informed by the media, agitated and highly troubled – will in both countries only be settled by a judgment considered as fair, just and proportionate. Peace under the law and internal security, however, do not seem to be dependent on specific forms of punishment. Capital punishment and life imprisonment appear as penalties which may be necessary reactions to murder in a given cultural context, but which are not indispensable to a criminal justice system.