Seeing Law: The Comic,Icon and the Image in Law and Justice

This special issue examines how the comic and the icon prefigure forms of legality that are different to modern law. There is a primal seeing of law unmediated by reading, writing or possibly thinking. This introduction identifies the primacy of the eye, the emergence of visual jurisprudence and the transformations of law as a paper-based material practice to a digitally enabled activity.     

法的合法性与整全性的关联分析

法律资格纷争成为英美法理学传统的一道难题,对这一问题的回答形成了不同法学流派。从法的合法性判准的不同模式出发,证立整全性不仅可以进入法的合法性判准的行列,而且必然成为当下法的合法性判准的最佳选择。这一必然的最佳选择基于整全性在理论上符合法律的终极目的,即最高指令——人类"善"的生活,在法律实践中实现了平等尊重和普遍的人文关怀,只有这样的法律才是理想型的法律。如果这一论证结论确实可行,那么,我们就可以超越哈特与德沃金关于法律概念之争,终结和平息不同法学流派对法律资格的纷争。对于法律资格的回答将聚焦于法的合法性和整全性的关联考察,其对法理学的重述将开辟新的理论疆场。     

Placing the Animal in the Dialogue Between Law and Ecology

This paper explores the growing dialogue between law and ecology, and asks if there is a promising space for the development of animal law in this growing dialogue. Specifically it sets up two meetings and dialogues between ecology and law, one with law prevailing, and one with ecology prevailing, The article pursues the later meeting of ecology and law through introducing and then compiling four prominent groupings in the ecology prevailing dialogue between ecology and law (Ecosystemic Law; Earth Jurisprudence; Resilience Theory; approaches embracing philosophical complexity theory). The article argues that in this dialogue that ecologically informed approaches develop a fundamental critique of orthodox legality, and that ecologically informed approaches consequently assume the problematic of legality, and that in so doing ecology and legality are each transformed. What emerges from these transformations is an ecological jurisprudence, and ideas of Emergent Law, Adaptive Law, and Ecolaw. In the final two sections the article turns directly to the place of the animal in the ecology prevailing dialogue between ecology and law. The article argues that in this dialogue affective assemblage theory has developed as a pre-prepared place for the animal as an affective body in complex social–ecological affective assemblages. The conclusion briefly draws out some of the implications for animal law and animal lawyers in taking up the conclusions from the ecology prevailing dialogue between law and ecology. The article suggests it may well be an exciting dialogue for animal law to find a place for exploration.     

Aleatory Materialism and Speculative Jurisprudence (I): From Anti-Humanism to Non-Humanism

This paper is the first part of an enquiry taking an initial, provisional step toward the construction of a theoretical matrix called speculative jurisprudence. Toward that end, it recruits the thought of Louis Althusser, whose work has taken on new significance thanks in part to the availability (in French and English) of many formerly unpublished texts, the contemporary critical scrutiny of numerous commentators, and the independent emergence of several philosophical currents sharing some of his work??s key concerns. The paper offers a unique characterization of Althusser??s aleatory materialism as at once a novel expression of Althusser??s ??jurisprudential problematic??, a problematic that I argue shapes his thought as a whole, and as a means of posing the core problem of dialectical materialism. The engagement with Althusser that I propose thus intervenes in current debates about aleatory materialism, but this is subsidiary with respect to the elaboration of speculative jurisprudence as a distinct approach in philosophy and law. That mode of thought begins to acquire a degree of reality by taking Althusser??s theoretical anti-humanism as a point of departure for the articulation of a non-humanist conception of legality, in a broad sense that conjoins the territories of both traditional philosophy and legal theory. The paper concludes with a reference to the open questions that Part Two, which will appear in Althusser and Law (2012), will take up.     

通过合法性的正当性——实证主义法学的正当性思想研究

现代性下事实与价值二分的法律实证主义割裂了法律与道德的关系,古代的正当性被转化为合法性:一个行动或公权力,只要是符合实在法的,即可称为正当。通过合法性的正当性要想成立,还必须解决法律自身的有效性问题,这样才能彻底摆脱道德的证成。以纯粹法学为代表的法律实证主义通过法律体系内的效力授权链回答了这个问题,从而完成了通过合法性的正当性的整个拼图。但是,割裂了法律与道德之间的联系,通过合法性的正当性又面临着新的正当性危机。     

Visual Jurisprudence of the American Yellow Traffic Light

In the United States, the steady yellow light means that a driver should either speed up or slow down. State laws written about a driver’s behavior at these yellow lights are vague and indeterminate and result in what is referred to as the dilemma zone (Hurwitz et al. in Transp Res Part F Traffic Psychol Behav 15(2): 132–143, 2012). This paper will reconsider law’s vagueness as intentional rather than problematic, insofar as cultural understandings of the yellow light lead to a framework of visual jurisprudence in which drivers interact with law through legal discretion and common sense confronting a yellow light. Through a jurisprudential juxtaposition between the yellow light and red light cameras used to enforce yellow lights, the semiotics of automaticity compete with the semiotics of context-bound decision-making.     

医事刑法的基础理论

用法学的观点来宏观探讨医疗问题的学问就是医事法学。医事刑法学则是对刑法领域中的医疗与刑法相互交差的问题作理论和实践研究,以探讨医疗问题中刑法应该介入的领域或场合,其目的在于保护国民的生命和健康。在医事刑法的领域,必须坚持刑法的行为主义、罪刑法定主义、责任主义和谦抑性原则,但同时更要尊重人的尊严和患者的自我决定权,尊重医疗的正当程序法理,在存疑时坚持以生命利益优先。     

The people v. the principle of legality in the People's Republic of China

The history of the People's Republic of China (PRC) since 1949 makes it apparent that the principle of legality is ideological anathema to the Party leadership there. In Western jurisprudence, in anthropology of law and in the nascent field of sociology of law, the development of the principle of legality has consistently been seen as a necessary foundation for the positive evolution of any legal system. The use of law in China in the recent past raises fundamental questions about this premise. The Chinese experience suggests a new hypothesis as to legal development for laboratory and field testing. This article will review the Chinese experience and formulate that hypothesis.     

The Legality of Self‐Constitution

An influential strand in recent action‐theory employs constitutivist arguments in order to present accounts of individual agency and practical identity (and of the normative requirements that are constitutive of these phenomena). I argue for an extension of this framework into the interpersonal realm, and suggest using it to reassess issues in jurisprudence. A legal system is an instantiation of the solution to the inescapable tasks of self‐constituting action and identity‐formation in the presence of other agents. Law's validity and normativity can be enlightened when the constitutivist approach considers the external prerequisites of individuals' self‐conceptions qua agents. More specifically, this argumentative strategy allows a reassessment of Fuller's “internal morality of law.” Whereas, pace Fuller, morally substantive conclusions cannot be derived from formal criteria of legality, there are unconditional normative requirements that constrain law.     

War & Society,Centeno, Miguel A. and Elaine Enriquez. (Cambridge,UK: Polity Press, 2016).

A bumper sticker on many cars in college and university parking lots proclaims: “WAR IS NOT THE ANSWER.” Most American students and faculty spend their entire time at university without thinking about war, except that they want to avoid it at all cost. Miguel Centeno, the Musgrave Professor of Sociology and International Affairs at Princeton University, and Elaine Enriquez, a research fellow also at Princeton, argue that war has been a normal part of human existence since time immemorial and that it deserves to be studied as a sociopolitical phenomenon in its own right. The authors employ a longue durée comparative approach to demonstrate how war has been responsible for some of humankind’s fundamental institutions and practices, and thus must not be condemned as immoral, irrational, stupid, or evil. War has a history of its own that deserves serious study.     

哈特/德沃金之争与法律实证主义的分裂——基于“分离命题”的考察

哈特与德沃金之争及其所开放出来的问题构成了当今英美法律哲学研究的理论坐标。哈特/德沃金之争的核心在于法律与道德有无必然的关联,哈特认为法律与道德不存在必然的关联;而德沃金认为,承认规则既无法识别原则也不是一个社会规则,法律与道德存在必然的关联。法实证主义在回应德沃金的批判时,在承认规则识别法律之判准的内容上发生了分歧,分裂为排他性与包容性的法实证主义。     

Creating markets in no-trust environments: The law and economics of smart contracts

Smart contracts, self-executing agreements based on blockchain technology, have the capacity to create trust in what we term no-trust contracting environments. We argue that using them in such environments is the path to unleash the full potential of smart contracts. Compared to the contract enforcement mechanisms characterized by traditional contract law or relational contracts, smart contracts can offer a superior solution for facilitating trade.Several lawyers and economists have debated whether smart contracts might offer the prospect of cheaper, faster and better transactions. As we discuss below, contract law scholars caution that they neither replicate the relational context essential for the day-to-day practice of contracting nor offer a superior solution to problems addressed by traditional contract law, such as contract validity and legality. We clarify and systematize the current thinking on the legal nature and reliability of smart contracts, and address the concerns of contract law scholars. While doing that, we suggest a step forward in characterizing contracting environments, contract enforcement mechanisms and the trust relationship underlying contracts.     

Icons of control: Deleuze,signs, law

This paper is broadly concerned with Deleuze’s distinction between ‚la loi et les lois’ on the one hand, and jurisprudence on the other. Jurisprudence is the␣creative action of legal practice, the process by which it is forced to think constructively and anew. In such circumstances legal thought is akin to Deleuze’s concept of the event. I explore the distinction between law and jurisprudence by way of Deleuze’s comments on control societies, arguing that, under control, law ceases to be a juridical hierarchy conforming to disciplinary modes to become a regulatory practice of interminable modulation. In order to begin to explore the relations and connections between law/jurisprudence and control, the paper will look to the semiotics of C.S. Peirce (who influenced Deleuze’s work on cinema). In particular it will argue that control operates predominantly through icons. As a consequence I argue that the proper ground of the sign, the event, is co-opted and, following from this, that control functions through the confusing of sense and meaning. Thanks to Anne Bottomley, Ronnie Lippens and Jamie Murray.     

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.     

分析法学视角下的法律行为“合法性”

法律行为合法性难题经久不衰。依据规范分析法学,词语意义的探究以其正确的使用范围为基础,有效、无效乃是私法评价法律行为的特定词语,当用合法与违法的术语来评价法律行为时,虽不能揭示出法律行为的具体效果,但却为公法规范进入民法自治领域提供了渠道。这两套用语体系存在的基础在于公法、私法的区分。公法与私法的表达方法尽管不同,但其内在价值秩序应当是统一的,其落脚点都是人,法律爱每一个人。     

The International Law of Naval Blockade and Israel’s Interception of the Mavi Marmara

In this article I discuss the legality of Israel’s interception of the Mavi Marmara on 31 May 2010. Although Israel’s stopping, boarding and inspection of the Mavi whilst on the high seas would undoubtedly constitute a violation of the law of the sea during peace time, I examine whether this violation can be justified on the basis of international humanitarian law. Specifically, Israel asserts that it was enforcing a naval blockade. I examine the legality of this blockade. I suggest that the blockade was unlawful on the basis that customary international humanitarian law permits the use of naval blockades only in times of an international armed conflict. I argue that on 31 May 2010 Israel was not engaged in an international armed conflict with Hamas. Moreover, I submit that customary international law prohibits the use of blockades where they are intended to deny the civilian population objects essential for its survival or where the damage to the civilian population is excessive in relation to the anticipated military advantage. Israel argues that the intention of the blockade was to prevent war material from being delivered to Hamas fighters. This notwithstanding, I argue that because this blockade was causing a severe humanitarian crisis in Gaza on 31 May 2010, it was incompatible with customary international law and therefore unlawful. Furthermore, even if the deployment of the blockade could be considered lawful, I argue that the enforcement of the blockade was unlawful because Israel’s use of force to capture the vessel went beyond what was necessary in the circumstances.

     

论法律人工智能的法理逻辑

法律人工智能的法理是"实践之法理",是证成法律人工智能实践之正当性的理据,它反映人工智能的技术理性与法律实践理性相融合以揭示法律运行的规律和特征,是"法外之理"的又一阐释。法律人工智能的法理逻辑在于辩护和证成,其价值不仅为法律人工智能提供法理解释和学理支撑,还在于规范和引导法律人工智能的发展。法律融合人工智能有其天然条件,探究其蕴含之法理是法律融合科技之法理的新命题,法理形式理性是辩护法律人工智能之法理的本质特征。法理之要义应在于指导人工智能理解和遵循立法及司法规律,符合法律任务的特征,满足法律实践的需求,定位和发挥"辅助手"的作用,最大限度地发挥人工智能的技术优势。     

我国法学教育的窘境与出路

法学教育关乎我国的法治建设和广大法学生的切身利益。近年法学教育处境尴尬,原因主要是盲目扩招、错误的培养方向以及落后的教育方式。改革势在必行,要转变观念,对法学教育目标重新定位。借鉴国外成功经验,法学教育应以培养社会需求的应用型和技能型人才为主。为此,应适当限制招生规模,改革传统的教育和教学模式,大力发展和培养实务型师资队伍,多管齐下,力争培养出受社会欢迎的应用型法律人才。     

Law,the Digital and Time: The Legal Emblems of <Emphasis Type="Italic">Doctor Who</Emphasis>

This article is about time. It is about time, or more precisely, about the absence of time in law’s digital future. It is also about time travelling and the seemingly ever-popular BBC science fiction television series Doctor Who. Further, it is about law’s timefullness; about law’s pictorial past and the ‘visual baroque’ of its chronological fused future. Ultimately, it is about a time paradox of seeing time run to a time when time runs ‘No More!’ This ‘timey-wimey’ article is in three parts. The first part looks to a hazy remembered past of the legal emblem tradition as presented in Peter Goodrich’s Legal Emblems and the Art of Law to learn visual literacy and also to glimpse the essential elements of modern legality with authority, decision and violence. The second part maps how these images and icons of modern legality are manifest in the Doctor Who fiftieth year anniversary special ‘The Day of the Doctor.’ The third stage looks beyond these first order meanings to understand the chronological chaos of ‘The Day of the Doctor.’ The technicity of the image as a portal through time and space that the narrative revolves around charts the implications for the digital end of time for law.     

Comment: Compulsory Licensing of Patented Pharmaceutical Inventions: Evaluating the Options

In this Comment, the author traces the relevant legislative history pertaining to compulsory licensing of patented pharmaceuticals from the TRIPS Agreement of 1994 to the 2003 waiver to, and later proposed amendment of, article 31, which enables poor countries to obtain needed medicines from other countries that possess manufacturing capacity. The Comment then evaluates recent, controversial uses of the relevant legislative machinery as viewed from different critical perspectives. The Comment shows how developing countries seeking access to essential medicines can collaborate in ways that would avoid undermining incentives to innovation and other social costs attributed to compulsory licensing. It ends by defending the legality of recent measures taken to promote public health in developing countries, and by reminding developed countries that unilateral retaliation against such measures is demonstratably illegal under WTO foundational law and jurisprudence.