A Court as the Process of Signification: Legal Semiotics of the International Court of Justice Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons

The International Court of Justice (ICJ) advisory opinion on the Legality of the Threat or Use of Nuclear Weapons in 1996 was a landmark case because, for the first time in history, the legal aspect of nuclear weapons was addressed. The decision has evoked controversies regarding the Court’s conclusion, the legal status of international humanitarian law in relation to nuclear weapons, and a newly introduced concept of state survival. While much legal scholarship discusses and criticizes the legal significance of the opinion, there has not been enough scholarship examining the Court’s specific choice of words and concepts that sustain its wider ideological and political position in the opinion. The paper argues that the Court’s vague and controversial logic is attributed to its confrontation with two international orders/codes: the legal order (or international law) and the political order (or state practice). The paper engages in legal semiotics as methodology to decode legal text and discover a deep structure that sustains networks of codes, according to which text is interpreted. Through the semiotic examination of three sets of key concepts (1) “permitted” and “prohibited,” (2) “threat of use” and “possession of the weapon,” and (3) “state survival,” the paper shows the ICJ’s confrontation with two orders/codes and eventual prioritization of the political order over the international legal order. The analysis of the opinion based on legal semiotics indicates an intimate and inseparable relationship between state practice and international law, which must be disentangled for the sake of the rule of law.     

试论文学意义的多层次存在

文学意义问题在西方现代文论中占有非常重要的地位。本文分析了作者意图、作品意图和读者意图等文本意义存在的三个层面,阐述了这三个层面之间的关系,指出文学意义的实现依赖于作者、作品和读者之间的综合作用,对任何一方的忽略或过分强调,都不可能对文学意义有完整的理解。     

Pistol image retrieval by shape representation

Databases have been used to record data in forensic science, such as fingerprints, shoeprints, and photos. In traditional databases, we use “text” as the “keyword” for retrieving data (text-keyword retrieval); however, in some applications, “text” is not proper to describe the searching target, and in this case, “image” plays an important role. In this paper, we use “image features” as the “keywords”, and show its potential for building up a prototype of pistol image databases.In current firearm databases of forensic science, the retrieval method is still by text-keyword retrieval. For experienced forensic examiners, this kind of databases may satisfy their requirement. However, for people who have little gun knowledge, how can they find the possible gun candidates or similar guns in the databases, if there are not any available words or marks on the gun? In this paper, we try to retrieve similar pistol images by the pistol shape instead of “text-keyword”. This method can narrow down the searching range while identifying pistols by firearm databases.There are more than 300 pistol images in our pistol image database. From the experimental results, we can retrieve the similar pistol images in top five candidates for each pistol image.     

Queer Criminology,Critique, and the “Art of Not Being Governed”

This article builds on previous work that argues that a useful path for a “queer/ed criminology” to follow is one that takes “queer” to denote a position. It suggests that one way of developing such an approach is to adopt a particular understanding of critique—specifically one that draws from Michel Foucault’s view of critique as “the art of not being governed.” It then charts some of the possible directions for such a “queer/ed criminology.” While such an approach to critique has previously been discussed within critical criminologies, this article suggests that it is useful for queer criminologists to explore the opportunities that it affords, particularly in order to better appreciate how “queer/ed criminology” might connect to, draw from, or push against other currents among critical criminologies, and help to delineate the unique contribution that this kind of “queer/ed criminology” might make.     

Exploitation in Human Trafficking and Smuggling

This article explores the mechanisms that underpin human smuggling and trafficking. It argues for the continued analytical relevance of the distinction between “trafficking” and “smuggling”, as posited by the 2000 UN Protocols. While this distinction has come under sustained criticism from several authors over the last 15 years, it nonetheless continues to capture the essential features of two distinct phenomena (control over a human being vs. illegal entry into a country), and acknowledges the role of agency in smuggling. The paper goes on to discuss three different scenarios that may emerge as a result of the interplay between smugglers and smuggled persons, and it specifies the role of exploitation in each scenario. In addition, the paper offers empirical evidence of the key building blocks of smuggling — namely the search for reliable information and the reaching of an agreement in regard to the service offered — and of how smuggling can turn into trafficking. This work concludes by drawing out the relevant policy implications.     

L’analyse comparée en traduction juridique,ses enjeux,sa nécessité

Translated texts sometimes reflect the writing tradition of the targeted law, but the equivalence of the source legal message, however, must be delivered in the target text. Translating law into a different legal culture cannot be accomplished without comparing laws, whose knowledge is essential to achieving legal equivalence. The way the target text is written should match its culture. Translating law is the moment when languages, cultures and laws meet. To materialize, this encounter has to be based on an ad hoc knowledge of the laws at stake. Then comparative law, translators’ “fellow traveler”, comes into play, preparing them for the exchange. To achieve this, “one only needs two receptions which intersect” (Carbonnier). This move is successful when concepts and notions overlap and the letter of law (substance) and its wording (form) merge, revealing “the spirit of the laws”. Comparative analysis is the way to achieve this result (I). It is conducted here under the light of jurilinguistics with an analysis of terms and concepts presenting various translation difficulties, demonstrating the necessity of comparative law (II). The lessons to be learned are aimed at all language professionals wishing to draw inspiration from the jurilinguists’comparative analysis approach to their work.     

相对优势地位理论质疑

相对优势地位理论强调了企业之间的相互力量对比,并认为当交易方在一定情况下具有类似在市场中处于垄断地位的企业的市场力量时,会使得交易相对方“依赖于”该企业,从而引起竞争法上的效果。依据对资产专用性理论,从沉没成本引起的利益判断、进入障碍和市场划分的关系的分析,以及对相对优势地位理论的相关判例的解析,可以看出该理论存在重大的缺陷,其实施不仅无法规范市场竞争秩序,还会造成理论和实务上的混乱。     

“卡迪”模式与刑事公正司法的实现

从“有法必依”到“公正司法”喻示着一种刑事司法观的应然转变:放松了司法者对法律文本本身严格服从的要求,更加强调文本之外的个案公正、合情理等实质合理性依据。这对破解当下具有普遍性的法条主义裁判思维,无疑是一种很好的政策支持和启发。按照罪刑法定原则本意进行合乎逻辑的推演,绝不能推导出“法有明文规定即可定罪处罚”的结论。韦伯关于中国古代司法系“卡迪”模式(即“非理性”)的论断具有一定的事实依据及合理性,这种卡迪模式对实质公正的追求具有目的正当性,不宜将此简单视为“恣意司法”的代名词,其中体现的能动性判断具有司法出罪维度的意义。在目前刑法体系下,法的公正价值与法的安定性并不存在冲突,出罪的理论依据与规范依据完全可以得到恰当融合,但在法适用中需要缓和法的命令性要求。恰当的说理论证是嫁接法的安定性与个案公正的纽带,该过程实际上是将合情理、合目的等价值考量揉入刑法文本的理解、适用及说理论证过程当中。     

Using NLP techniques for file fragment classification

The classification of file fragments is an important problem in digital forensics. The literature does not include comprehensive work on applying machine learning techniques to this problem. In this work, we explore the use of techniques from natural language processing to classify file fragments. We take a supervised learning approach, based on the use of support vector machines combined with the bag-of-words model, where text documents are represented as unordered bags of words. This technique has been repeatedly shown to be effective and robust in classifying text documents (e.g., in distinguishing positive movie reviews from negative ones).In our approach, we represent file fragments as “bags of bytes” with feature vectors consisting of unigram and bigram counts, as well as other statistical measurements (including entropy and others). We made use of the publicly available Garfinkel data corpus to generate file fragments for training and testing. We ran a series of experiments, and found that this approach is effective in this domain as well.     

The Commission for Environmental Cooperation and North American Migratory Bird Conservation: The Potential of the NAAEC Citizen Submission Procedure

This article examines the citizen submission process laid out in Articles 14--15 of the North American Agreement on Environmental Cooperation (NAAEC), the 1993 environmental NAFTA “side agreement.” These articles set out a process by which nongovernmental organizations (NGOs) or individuals may file a submission alleging that one of the Parties to the agreement “is failing to effectively enforce its environmental law.” The paper traces developments set in motion by two submissions alleging failure to enforce migratory bird legislation. The first targets the United States, the second, Canada. Developments in these and other Article 14--15 cases have enfeebled an instrument that, from the outset, many regarded as having quite limited potential. These cases indicate, nonetheless, that the procedure still has some limited usefulness as a way of highlighting implementation failures. NGOs that do choose to invest in pursuing a citizen submission process would be advised to combine these efforts with other approaches to mobilizing public pressure.     

Rights and Resources—Libertarians and the Right to Life

The author addresses Robert Nozick's claim that: “The particular rights over things fill the space of rights, leaving no room for general rights to be in a certain material condition.” Hence Nozick insists that rights are violated if citizens are compelled to contribute to others' welfare, however urgent their needs may be. The author argues that it is characteristic of libertarian theories that they invoke the moral sanctity of private property against welfarist or egalitarian conceptions of social justice. Nozick's version of the libertarian critique has three conceptual pillars–“right,”“thing” and “space.” On that basis Nozick claims that talk of welfare “rights” can be condemned on the plane of rights. This is true, Nozick maintains, even of “the right to life.” The author contends that this argument fails. It equivocates over the idea of “rights”; and it misconceives crucial features of property. Nozick deploys exclusive “domain rights,” whilst attacking “important‐interest rights.” His historical‐entitlement theory fails as a justification of private property. The author argues that, so far as material objects are concerned, private property institutions depend upon trespassory rules which do not impose morally binding obligations unless basic needs are catered for. Furthermore, private property institutions also comprise monetary resources to which the spatial metaphor of exclusive rights does not apply. Holdings vested in any particular person at any particular time are stamped, morally, with a mix of contestable and mutable property‐specific justice reasons. Hence it is fallacious to suppose that ownership rights together exhaust all normative space over “things.” The major objection to speaking of everyone's having a right to various things such as equality of opportunity, life, and so on, and enforcing this right, is that these “rights” require a substructure of things and materials and actions; and other people may have rights and entitlements over these. [≡] The particular rights over things fill the space of rights, leaving no room for general rights to be in a certain material condition. (Nozick 1974, 238)     

The Continuing Problem of the Universal to Questions of Justice: A Feminist Reading of Lars von Trier’s <Emphasis Type="Italic">Dogville</Emphasis>

What are the terms of evaluation that seem relevant in deciding whether a film is feminist or anti-feminist? Which critical practices should be engaged in such an evaluation? In recent and contemporary critical feminist practices, feminist arguments are no longer based on a stable subject category of “woman” and there is no longer any particular methodology upon which feminist theorists rely. The category of “woman” has been revealed to be not an ahistorical, stable category but an effect of material and representational practices. Further, feminist methodologies have been concerned to contextualize the framing of the questions they ask, as well as their place in the methodologies they employ. In addition to the refusal of an essentialized female subject, feminists have called into question the idea that it is possible to produce a “feminist method” based on the standpoint of a female subjectivity, even where this subjectivity is admitted as a construct, arguing that this extrapolation to the general from a particular point of view produces political, and frequently racist, effects. In this essay, I consider Lars von Trier’s controversial film Dogville (2003) as a case study to explore the relation of practices of representation to questions of feminist justice. I argue that the film does a lot of good critical work in showing the ways in which certain practices of representation can be mobilized to produce a collectivity (or “sovereignty”) that is seen to emanate from “the people” and to thereby instantiate authority, while simultaneously disguising the material and political effects of its subjugation of “others.” However, in doing this work the film produces its own problematic construction of universality and particularity. Further, the film instrumentalises representations of sexual violence and subjection in order to prove its point, and as productive as these tactics are to illuminating questions of social justice, I argue that this representational practice produces effects that need to be read as anti-feminist.     

Rawls's Political Liberalism. A Reassessment

Since Rawls's Political Liberalism is by now the subject of a wide and deep philosophical literature, much of it excellent in quality, it would be foolhardy to attempt to say something about each of the major issues of the work, or to sort through debates that can easily be located elsewhere. I have therefore decided to focus on a small number of issues where there is at least some chance that a fresh approach may yield some new understanding of the text: Rawls's distinction between “reasonable” and “unreasonable” comprehensive doctrines; the psychological underpinnings of political liberalism; and the possibility that political liberalism might be extended beyond the small group of modern Western societies that Rawls's historical remarks suggest as its primary focus. I also include a discussion of the much‐debated issue of civility and public reason, which could hardly be avoided given its prominence in the book's reception. This paper should therefore be read not as a comprehensive account of the work but as one person's attempt to grapple, very incompletely and imperfectly, with a book that is as great as any philosophy has seen on this topic of great human urgency.     

关于创设“继任犯”理论的构想

基于封约三年内先後出现的三个类似疑案的研究，笔者首次发现了这类犯罪是除犯罪预备、犯罪未遂、犯罪中止之外的又一种“不完整一罪”犯罪形态，首次提出了“继任犯”理论，有效解决了“继任犯”定罪乱、处罚乱问题。     

On Collective Actions. Some Remarks on the Theory of Legal Actions

In this paper the author deals with collegial judicial decisions as a form of human action. The scope is, however, limited to three questions: (1) What is the structure and the status of the general theory of action; (2) Is this theory applicable to such performative acts as judicial decisions; and finally, (3) Is it possible to speak about action in connection with collective agents such as collegial courts? The author defends the thesis that general theory of action as such is applicable to collective action, too, because the difficulty is not in the structure of that theory, or in its “individual character,” but specifically in the notion of “collective will.” This kind of “will” is epistemologically always a result of a political procedure, and speaking about the “collective will” presupposes the analysis of these procedures, because in practice they and only they formulate “collective motives,”“collective beliefs” and the like.     

Bucking the Party Line: Calavita's Invitation to Law & Society (In Which the Author Is Invited to a Party Where He Encounters Many Old and Familiar Faces,Becomes Argumentative,Stays Up Too Late,and Finally Departs in Search of New Adventures)

Intended as a short survey text, Kitty Calavita's Invitation to Law & Society expertly summarizes many of the central themes of law and society scholarship as they have developed over the past fifty years. It also clearly identifies the field's object of attention: “real” law. I use this commentary on the book as an opportunity to assess the field as it enters its sixth decade. How has the field changed? What are its defining characteristics? What is “real” law? Does law and society research have a future?     

Integrating the desire–for–control and rational choice in a corporate crime context

The “rational choice” framework, with its focus on risks and rewards, is often used to explain corporate criminality. In this paper, we build on this framework by integrating the notion of “desire‐for‐control.” Although common to many psychologists, the desire‐for‐control, or the general wish to be in control over everyday life events, has not been examined for its relevance in understanding criminal activity generally, or within corporate offending in particular. After demonstrating the importance of desire‐for‐control in the corporate context, we use data from a sample of managers and MBA students to examine the extent to which desire‐for‐control relates to rational‐choice considerations and corporate criminal decision‐making. Results suggest that desire‐for‐control (1) influences the interpretation of rational‐choice considerations and (2) is positively related to corporate criminality even after controlling for a number of important situational‐ and individual‐level factors. Implications for future theoretical and empirical research are addressed.     

Suburbia’s “Crime Experts”: The Neo-Conservatism of Control Theory and the Ethos of Crime

This essay tackles the relationship between morality and crime by way of the debate surrounding Travis Hirschi’s double contribution to so-called “control theory,” first as “social bonding theory,” and subsequently as a “general theory” of crime. The assessment conducted herein construes the first version of “control” as an expression of patriotism, and its late formulation, on account of its emphasis on varying individual levels of self-mastery, as an implicit reaffirmation of the inevitability of class division. Over the years, the fixation with “self-control” has become a rubric for the suburban anxieties of an upper-middle class surrounded by expanding (ghetto) poverty and plagued by familial dysfunction and the alienation of its own offspring. In the final analysis, these reflections form the basis for a general reformulation, inspired by the sociology of Thorstein Veblen, of the relationship between class and crime and condign punishment by leveraging the notion of ethos (a common mindset peculiar to each class), and proving thereby that crime is systematically determined by this very mindset, which is the spiritual complement to class formation, rather than by the conventionally classless categories of rational self-interest or idiosyncratic proneness to violence.