Street politics in Damascus: Kinship and other social categories as bases of political action, 1830–1841

The study examines popular politics in Damascus during the 1830s with a focus on kinship and other social categories that served as bases for political action. It is based on a close reading of one text, an anonymous Arabic chronicle known as ‘Historical Memoirs’ (Mudhakkirāt tārīkhiyya), which is analysed as a repertoire of contemporary social and political concepts. This analysis reveals an ideology of ‘localist’ resistance against the centralising state and its ‘loyalist’ allies in Damascus. Kinship played an important role in this struggle on the social plane (e.g. by using family networks for political ends) as well as on the cultural plane (e.g. through the use of kinship metaphors or through criticism of kinship ties in politics). It is concluded that the function of kinship in Damascene politics can only be understood in the context of other social categories such as factionalism, religious affiliation, class and ethnicity.     

Holding (Quasi-)Autonomous EU Administrative Actors to Public Account

Abstract:  This article addresses problems of accountability in relation to two specific kinds of administrative actors in the EU system of multilevel governance, namely comitology committees and EU-level agencies. With regard to both sets of actors, the accountability issue is often framed in terms of delegation from a principal to an agent. This article explores the delegation of powers discourse and the question whether this framing adequately covers accountability forums and mechanisms that are emerging as a matter of legal and institutional practice. The latter sub-constitutional level is particularly relevant given the high degree of institutionalisation of both categories of administrative actors. Using these two categories of administrative actors as case studies, this article suggests that a delegation model of accountability in a democratic sense is not adequate and only captures part of emerging practice. A looser conceptual framing, understanding public accountability as a process in which power is checked and balanced by various actors, fits better within a more constitutional perspective on holding EU executive power to account.     

Gendering Justice in Humanitarian Spaces: Opportunity and (Dis)empowerment Through Gender‐Based Legal Development Outreach in the Eastern Democratic Republic of Congo

Why have women in eastern DR Congo increasingly turned to domestic courts in the aftermath of sexual violence, despite the fact that the state has consistently failed to provide basic goods and services to its citizens? Moreover, how do victims of violence interpret their first encounters with state law in an environment characterized by institutional fragility and humanitarian governance? This article analyzes the experiences and reflections of 50 self‐reported victims of sexual violence in eastern DR Congo. We find that human rights NGOs have served as critical mediators in persuading victims of violence to pursue legal remedy for sexual crimes. However, rather than being socialized to prioritize formal accountability mechanisms in precisely the ways that the architects of legal outreach programs intended, we find that victims of violence have turned to the law for a combination of material and ideational factors. Some appear to have internalized emerging norms of punitive criminal justice, while others have adopted the language of law instrumentally, in order to access crucial socio‐material benefits. We identify a paradox of opportunity and disempowerment, therefore, that characterizes our interviewees' experiences with the law.     

Beyond conception: legal determinations of filiation in the context of assisted reproductive technologies

This article argues that legal determinations of filiation are normative ideological constructions about how societal relations between parents and children should be ordered. They are based upon regular understandings of the relationship between biological and social facts and, as this article demonstrates, operate to create an asymmetrical relationship between the categories between paternity and maternity. I suggest that fairly recent developments in reproductive and genetic filiation have been made and offer the potential for an expanded understanding of relatedness or kinship which does not take the two-parent--one of each sex--model of the family as its normative form. While the examples I draw on arise in the context of reproductive technologies, I suggest that the analysis has broader implications for the recognition of broader family forms and relationship.     

Global Climate Change and the Fragmentation of International Law

Born into the wider body of international law, the climate regime needs to be understood in light of preexisting regimes. By drawing on the current debate about fragmentation in international law, this article highlights challenges for international lawyers and policymakers in navigating the relationship between the climate regime and the biodiversity regime, and the relationship between the climate regime and the multilateral trading system. This article concludes that a narrow focus on conflicts misrepresents the multifaceted nature of climate change and precludes an adequate jurisprudential understanding of the relationship between the climate regime and other regimes. An improved understanding, particularly with respect to interactions with the biodiversity regime, requires a broadening of the debate that takes account of the institutional aspects of these relationships that may allow enhanced political cooperation and coordination. Further, international law, and in particular the emerging concept of systemic integration, has the potential to make a positive contribution to the climate‐trade interplay.     

特留份制度之伦理价值分析

特留份制度的设置建基于法定继承人的亲属身份关系,其目的在于维护亲属身份的伦理价值,保护一定范围近亲属的继承期待权,从而维护家庭的稳定,实现家庭养老育幼的职能。我国现行继承法规定的必继份制度的内容过于原则且缺乏可操作性,没有充分体现继承法所应蕴涵的伦理价值,应当改必继份制度为特留份制度。修订与亲属身份密切相关的继承法,既要遵循财产法的规则,保护公民个人财产的所有权,保护其处分财产的自由权,也要考虑亲属身份的特殊属性,考虑人情、伦理以及传统习俗。     

Traditional Local Justice,Women’s Rights,and the Rule of Law: A Pluralistic Framework

The paper focuses on the application of a particular conception of the rule of law to situations characterized by traditional local justice and legal pluralism. While in the twentieth century international rule‐of‐law programmes were directed almost exclusively at state legal system, they have recently begun to take into account traditional local justice, namely, those institutions which in many world regions represent the main form of effective justice. Starting with a review of the positive and negative aspects of traditional local justice from a rule‐of‐law perspective, the paper underlines the widespread lack of protection of human rights, particularly of women’s rights. Discussing vertical rule‐of‐law functions in contexts of legal pluralism the paper stresses the advantages of an approach to the promotion of the rule of law based on mutual recognition and influence between different legal authorities and sources. It is argued that this “interactive” approach appears best suited to the complex frameworks of relations that characterize present‐day systems of deep legal pluralism. Finally, the paper underlines the correspondence between this approach and a conception of the rule of law as an ideal framework of plural interactions characterized by the limits imposed on the law by the law itself, and it discusses its advantages from the perspective of human rights and women’s rights promotion.     

论祖国大陆亲属法通则性规定的确立——以海峡两岸亲属制度之比较为视角

《亲属关系通则》的缺失是我国祖国大陆《婚姻法》经2001年修改后仍存在的一个重大遗憾。亲属关系通则有自身的功能及特定的价值取向,建立该项制度有它的实际意义,对祖国大陆和我国台湾相关立法的介绍评析,一方面指明了我国中国大陆地区亲属立法中存在的不足,另一方面有针对性地提出了部分立法建议,以求为我国祖国大陆亲属立法之完善提供一定的参考。     

DISPUTE RESOLUTION AND THE POSTDIVORCE FAMILY: IMPLICATIONS OF A PARADIGM SHIFT1

Over the past two decades, there has been a paradigm shift in the way the legal system handles most family disputes—particularly disputes involving children. This paradigm shift has replaced the conventional model of adjudication with a more collaborative, interdisciplinary, and forward‐looking family dispute resolution regime. It has also transformed the practice of family law and fundamentally altered the way in which disputing families interact with the legal system. This essay examines the elements of this paradigm shift in family dispute resolution and explores the opportunities and challenges it offers for families, children, and the legal system.     

Legislating the Family: The Effect of State Family Laws on the Presence of Children in Same‐Sex Households

Faced with legal animus or outright legal prohibitions on adoption, fostering, or surrogacy, gay men and lesbians could be deterred from family formation. In this article, we use 2000 U.S. Census data to assess the validity of this assumption by examining the effect of positive and negative family laws on the presence of children in the households of same‐sex unmarried partners. In doing so, we seek to assess whether formal law plays a central role in family formation outcomes for gay men and lesbians. Employing a multilevel analysis, we find that formal law, particularly negative formal law, appears to play little role in outcomes involving family formation. Formal law might, however, play a greater role when defining property or other legal rights, such as through second parent adoption. These findings are compatible with the notion that individuals are less likely to consult formal law in their everyday lives—particularly with regard to family matters—but are more likely to do so with regard to family issues concerning wills and estates, transfers of property, or other “business” matters.     

Legal pragmatism and the pre-birth continuum: an absence of unifying principle

The common law has historically been clear - the rights of the unborn do not exist prior to birth. A child becomes a legal person and able to enforce legal rights upon being born alive and having a separate existence from her or his mother. This article assesses whether new developments in biomedical technologies have left this legal principle inviolate and explores what the state of law is in relation to pre-birth. It argues that there is a pre-birth continuum where the law punctuates points in a lineal timeline fashion as to when a pre-birth "non-entity" becomes a legal entity. The article concludes that there is no singular rule of law with respect to being or becoming a human but rather a collection of discrete and increasingly divergent legal categories. This recognition of a pre-birth continuum or timeline as to the legal recognition of this "non-entity" has significant ramifications for the future development of law and impacts on legal thinking about what it means to be human.     

REEVALUATING WHERE WE STAND: A COMPREHENSIVE SURVEY OF AMERICA'S FAMILY JUSTICE SYSTEMS

The call for court reform remains critical in the face of the growing complexity of burgeoning family law cases nationwide. Many states have restructured their court systems using the unified family court model, resolving legal, personal, emotional, and social disputes with the aim of improving the well‐being of families and children. Other states utilize the traditional approach, resulting in cases being handled in a fragmented, time‐consuming and expensive manner. In this article, Professor Barbara A. Babb presents the results of her nationwide survey regarding how each state handles family law matters. The survey is a follow‐up to her comprehensive 1998 survey and her 2002 survey update. The results of the recent analysis reveal that a total of thirty‐eight states now have either statewide family courts, family courts in selected areas of the state, or pilot or planned family courts, representing seventy‐five percent of states. The number of states without a specialized or separate system to handle family law matters has decreased from seventeen states in 1998 to thirteen in 2006. These changes are significant when one considers the complexities involved in court reform. The need for court reform remains an urgent one, as family law cases occupy a significant percentage of court dockets across the country. Families and children deserve a court system where justice is effective and efficient and where their legal, personal, emotional, and social needs are resolved in a therapeutic and holistic manner.     

“We Are the Visible Proof”: Legitimizing Abortion Regret Misinformation through Activists’ Experiential Knowledge

Since 2010, many abortion policies emerging at the state level have been designed around the idea of “abortion regret,” a scientifically discredited assertion that abortion causes long‐term health problems for women. Studies have examined the legal significance of regret claims in case law as well as the role scientific misinformation and uncertainty play in the policy process. However, scholars have given less attention to the intersection between abortion regret experiences and misinformation. We address this gap in the literature by examining how antiabortion activists' experiential knowledge continues to reinforce and legitimize misinformation contained in state policies. We explore the process of substantiating abortion regret misinformation by attaching it to activists' experiential expertise. Based on twenty‐three interviews with antiabortion activists, we argue that misinformation receives validation through the certainty of experiential knowledge, which activists mobilize around and use as a source of evidence in the policy process.     

The Indirect Influence of Politics on Tort Liability of Public Authorities in English Law

The scope of negligence liability of public authorities in English law has undergone significant changes in the Post‐World War II period, first expanding and then, from the mid‐1980s, retracting. This article tries to explain why this happened not by focusing, as is common in most commentary on this area of law, on changing doctrinal “tests,” but rather by tying it to changes in the background political ideology. My main contention is that political change has brought about a change in the law, but that it did so by affecting the scope of the political domain, and by implication, also the scope of the legal one. More specifically, I argue that Britain's Post‐War consensus on the welfare state has enabled the courts to expand state liability in accordance with emerging notions of the welfare state without seeming to take the law into controversial territory. When Thatcher came to power, the welfare state was no longer in consensus, thus making further development of legal doctrines on welfarist lines appear politically contentious. The courts therefore reverted back to older doctrines that seemed less politically charged in the new political atmosphere of the 1980s.     

WHERE IS THE VILLAGE GOING? MAINTAINING AND INCLUDING CULTURAL STRENGTHS TO PROTECT CHILDREN ORPHANED IN KENYA

This article is the result of a master's thesis about children and their universal right to be included in a family environment. This is not only protected under international law, but also intuitive to human beings. HIV‐AIDS continues to threaten lives of children, particularly in sub‐Saharan Africa in the form of orphaning. Looking at a case study from Kenya, it is revealed that, while legal protection is yet to be fully realized in the state, strong cultural norms of value are alive. Currently, the extended family system is the greatest protection to children orphaned or at risk of being orphaned. However, this system was made invisible in the domestic laws of Kenya under the Children Act 2001. This neglect calls for questions not only regarding the protection cultural norms may offer, according to the best interests of children, but also as to the cultural environment being created with the new law.     

试论中国亲属法哲学的发展方向——兼与徐国栋教授商榷

近年来,我国亲属法制建设与法学研究进入了比较繁荣的时期。但是,亲属关系的立法和亲属法基本原理的研究依然令人忧虑,有许多重大基本理论问题未能得以明晰。其主要原因在于,作为部门法哲学重要分支的亲属法哲学研究尚处于起步阶段,该研究领域还有许多等待开垦的荒地。由于基本原理中很多重大问题难以达成学术共识,导致目前亲属法的实践,尤其是司法解释和司法适用的法律实践存在诸多问题。本文从亲属法哲学的本体论层面,就亲属法的法律定位及调整对象等问题的学术论争提出了自己的观点,同时,就徐国栋教授的某些学术见解提出了不同意见。     

CYBER‐ABUSE—A NEW WORLDWIDE THREAT TO CHILDREN'S RIGHTS

Cyberspace is a new frontier for both international and domestic family law. On the one hand, it presents great opportunities for society and, on the other, great dangers particularly for children. This paper explores a number of issues from a domestic and international family law perspective. These issues include:

• ? What is cyberspace, how has it emerged, and where is it likely to go?
• ? What are the potential dangers for children that arise from children's engagement with cyberspace?
• ? What is the nature and extent of domestic and international family laws that protect children from the dangers of cyberspace?
• ? What are some of the present and emerging policy issues that impact on these matters?

Cyber‐abuse is a term that encompasses a wide range of aggressive online activities.     

《国家赔偿法》第17条第(一)项适用之探讨

在国家不承担刑事赔偿责任的六种法定情形中,对于《国家赔偿法》第17条第(一)项的理解存在着较大的分歧,导致法律适用不一。以国家赔偿的归责原则为基础,探求刑事诉讼各阶段“公民自己故意作虚伪供述,或者伪造其他有罪证据”与刑事赔偿的关系,进而对《国家赔偿法》第17条第(一)项国家不承担赔偿责任的法定情形提出司法与立法建议。     

The (Heterosexual) Regendering of a Modern State: Criminalizing and Implementing Domestic Violence Law in Trinidad

This paper investigates one example of a process with global implications that I describe as the "regendering" of the state. Regendering refers to the process of bringing to public and legal attention categories and activities that were formerly without name but that constituted harm to women, denied them rights, silenced them, or limited their capacity to engage in actions available to men. I examine the regendering of the Trinidadian state by focusing on one of its most salient examples, the Domestic Violence Act. I identify first the coalition of forces and events that brought the subject of violence against women to lawmakers' attention and made possible the first Domestic Violence Act in the English-speaking Caribbean. I then investigate the interplay between the global discourse about domestic violence law-the passage of which has become an important symbol of the "modern" state-and local concerns about justice, gender, and family. Finally, I consider problems in the implementation of domestic violence law.     

‘On the Perimeter of the Lawful’: Enduring Illegality in the Irish Family Planning Movement, 1972–1985

Between 1935 and 1985, Irish law criminalized the sale and importation of condoms. Activists established illegal markets to challenge the law and alleviate its social consequences. They distributed condoms through postal services, shops, stalls, clinics, and machines. Though they largely operated in the open, their activities attracted little direct punishment from the state, and they were able to build a stable network of medical and commercial family planning services. We use 30 interviews conducted with former activists to explore this history. In doing so, we also examine the limits of ‘illegality’ in describing acts of everyday resistance to law, arguing that the boundaries between legal and illegal, in the discourses and practices of those who sought to challenge the state, were shifting and uncertain. In turn, we revisit ‘illegality’, characterizing it as an assemblage of varying selectively‐performed political practices, shaped by complex choreographies of negotiation between state and non‐state actors.