西方三大法学流派方法论检讨

时至今日,虽然西方的法学研究呈现出百家争鸣的局面,费耶阿本德的"反对方法"的理论也对法学研究要不要讲究"家法"造成了一定的冲击,然而,自然法学派、分析法学派以及社会法学派仍然是西方三足鼎立的法学流派,而构成"流派"的前提,又在于不同的学派在方法论上的不同观念.自然法学派以自然法作为评判实在法的基本尺度,因而其研究方法常被人们称为"价值分析方法";分析法学派突出强调法学的科学性,以实证分析作为其研究的圭臬;社会法学派则以社会分析作为其研究目标,突出强调法律与社会实在关系的考察.总的说来,三大法学流派都从一个不同的侧面揭示了法学研究的路径,有利于人们从不同的角度来观察法律问题.为此,作者不惴浅陋,就三大法学流派的研究方法进行一个简单的探讨,以期引起人们对法学方法论研究的进一步重视.     

论法律渊源--以法学方法和法律方法为视角

从法律方法的角度看法律适用是一个关于“法律是什么”的认识理性 ,而法律适用中法律渊源内部冲突的解决是一个“如何实现法律”的技艺理性。从两者的关系上看 ,认识“法律是什么”是“如何实现法律”的起点 ,“法律是什么”也仰赖于“法律如何实现”     

Developing Authenticity,Building Connections: Exploring Research Methodologies in Asia

Asian Journal of Criminology - The article considers the methodological opportunities and challenges associated with three large-scale ethnographic studies conducted in Bangladesh, China, and...     

The use of warnings in the presence of errors

This article studies the effects of warnings, an enforcement instrument which is often used by environmental inspection agencies. Due to regulatory errors, measured emissions are uncertain and some firms are unjustly penalized. Warnings can then be used as a means to reduce the consequences of these errors. Even though the presence of warnings creates some underdeterrence of medium-cost firms, such a system reduces the overcompliance of low-cost firms caused by the uncertainty surrounding measured emissions. Further, warnings reduce the number of incorrect prosecutions in the case of measurement errors, which is also welfare enhancing, albeit at the cost of increasing the number of violators that go unpunished. For small error sizes, the use of warnings is shown to be welfare improving compared to only using fines.     

The determination of carboxyhaemoglobin in the presence of sulphaemoglobin

The quantitative analysis of carboxyhaemoglobin (HbCO) in fresh blood samples containing sulphaemoglobin (SHb) and in post-mortem blood samples was investigated using two automated spectrophotometers. The OSM 3 Hemoximeter gives much more accurate determinations of HbCO than the IL 282 Co-Oximeter in the presence of SHb. In addition, the OSM 3 Hemoximeter is designed to correct for the presence of SHb and turbidity of blood samples. It is thus suitable for the analysis of post-mortem samples from fire victims and decomposed bodies which may be very putrefied and contain SHb.     

Regulatory enforcement in the presence of a court system

The responsibilities of a regulatory agency involved in the law enforcement process vary considerably. In this paper we consider three different legal procedures in the process of law enforcement: First, we assume that the regulatory agency is in charge of the detection of offenses. Conviction takes place via court trial. Second, we assume that the regulatory agency has the power to fine an individual if there is some evidence that he did not comply with the law. An individual who has been fined by the agency has the right to lodge an appeal. If he makes use of this right, the question whether or not he complied with the law will be reconsidered. Here we discuss two different legal procedures: The case is decided by court, and the regulatory agency is required to provide sufficient evidence for its decision. Or, the agency reconsiders its decision and decides whether or not to press charges in court. We formalize these three legal procedures in a game-theoretic context and analyze the implications of the procedural regulations on the decision of a potential offender to behave illegally.     

Public opinion on media presence in the courthouse

Very little attention has been devoted to the public's opinion of media coverage of court cases despite extensive research on pretrial publicity (PTP). Following a provincial judgment to restrict media access in Quebec courthouses, a preliminary unpublished study found that the public was largely in support of these restrictions. The present study sought to expand on this finding in a more widely generalizable sample. Subjects were recruited from continuing education classes and completed a questionnaire that assessed their support for restricting journalists in courthouses. Nearly 80% of the 243 participants supported media restrictions. Although participants in the four experimental conditions and one of the control groups were largely in favor of the restrictions, one control group was opposed to the restrictions. The results suggest that the public prefers that journalists have restricted access to courtroom participants, resonating research on PTP and the Supreme Court's decision on the case.     

戒毒人员后续照管方法研究及模式探索——关于“黄丝带”活动的实践与思考

吸毒造成的危害早已为世人所熟知,吸毒人员数量的上升比例虽逐年有所减少,但复吸人员的数量却逐年递增,已成为戒毒工作的一大难题。如何降低复吸率一直是一个世界公认的“国际难题”,为探索这一难题,湖南省坪塘强制隔离戒毒所设立了“黄丝带”戒毒鼓励基金,形成了一个由该所主导,公安机关、社区、家庭共同参与的“四位一体”戒毒帮教体系,旨在巩固所内戒毒成果,鼓励戒毒人员回归社会后彻底摆脱毒品依赖,促进强制隔离戒毒与社区戒毒模式的无缝对接,形成社会关注、政府关爱、亲情扶助、共同照管的全方位戒毒支持系统。本文立足我所“黄丝带”活动的开展实践,通过深入的调查研究,对“黄丝带”活动进行深刻的思考分析,力求引起多方重视,共同破解戒毒人员复吸难题,齐力维护社会的和谐稳定。     

Interpretation of GC-MS opiate results in the presence of pholcodine

Although the cross reactivity of pholcodine with opiate immunoassays has been well documented there is little published information the potential for pholcodine interference with chromatographic analyses. Wilson and Smith [Ann. Clin. Biochem. 36 (1999) 592] recently described the 'misidentification' of morphine in quality control specimens that had been spiked with pholcodine. This report describes a sensitive, rapid gas chromatography-mass spectrometry (GC-MS) method for the detection and quantitation of pholcodine and morphine, together with 6-monoacetylmorphine (6-MAM), codeine and dihydrocodeine in urine. This method was used to analyse urine specimens collected from volunteers given single and multiple doses of pholcodine to establish the significance this drug on the analytical results obtained when performing drug screening according to the proposed UK and EU legally defensible workplace drug testing guidelines. The maximum urinary free morphine concentration achieved following a single 10mg oral dose of pholcodine was 1.39 mg/l at 2-4h post dose. Following multiple 10mg oral doses of pholcodine the maximum urinary free morphine concentration was determined as 0.4 mg/l at 170 h after the final dose was administered. This apparent anomaly in the morphine concentrations obtained following single and multiple pholcodine doses can be explained in part by differences in the concentration of the specimens, and may be overcome by applying a correction factor for specimen dilution using their creatinine concentration. The data from this study suggests that even following one single 10mg dose of pholcodine, free morphine concentrations greater than both the proposed UK workplace drug testing guidelines threshold of 0.3mg/l total morphine and the proposed European Union threshold of 0.2mg/l total morphine can be achieved. This highlights the need for caution when interpreting confirmatory opiate data, especially in medicolegal and clinical cases, and in cases where the use of pholcodine is suspected.     

The detection of the presence of azafen in cadaveric material

Possibility of isolating azaphen from the cadaveric material by acidified water and acetonitrile (as extractant) is shown. Isolation rate (75.6%) of azaphen (with 1 mg of preparation added to 25 g of the liver by acetonitrile is significantly higher than in isolation by acidified water (41.7%).     

The electoral connection of ministerial selection in the UK

Many studies have examined the determinants of ministerial selection. However, the effect of electoral incentives on government post allocation has so far not been studied in the literature. Drawing on data from the United Kingdom over the period 1992–2015, this article investigates the relationship between the selection of ministers and the electoral interests of the actors in this selection process – party leaders and members of parliament (MPs). The findings demonstrate that the greater the electoral safety of constituencies, the more likely are MPs to have a higher office. The results reveal a broader conception of party strategy in government formation than previously documented. The paper thus suggests that electorates can affect the allocation of ministerial positions in the UK.     

On the selection of capital juries

Death qualification may bias capital juries not only because it alters the composition of the group “qualified” to sit, but also because it exposes them to an unusual and suggestive legal process. This study examined some of the effects of that process. Subjects were randomly assigned to one of two conditions in which they were exposed to standard criminalvoir dire that either included death qualification or did not. Subjects who were exposed to death qualification were significantly more conviction prone, more likely to believe that other trial participants thought the defendant was guilty, were more likely to sentence him to death, and believed that the law disapproves of death penalty opposition. Several psychological features of the death-qualification process are suggested to account for the biasing effects.     

The toxicological challenges in the European research project DRUID

Within the epidemiological studies of the integrated European research project DRUID (Driving Under the Influence of Drugs, alcohol and medicines), 13 laboratories from across Europe will analyse whole blood, oral fluid (OF) or urine from the general driving population and injured drivers. To ensure the comparability of toxicological results from the different studies, the collection of samples, analytical methods, target analytes and analytical cut-offs have been standardized for all laboratories involved.Target analytes were selected based on suspected impairing effects and prevalence. Twenty-three drugs are included in the ‘core list’ for which analysis is mandatory: ethanol, amphetamine, MDMA, MDA, MDEA, methamphetamine, cocaine, benzoylecgonine, THC, THC-COOH, 6-acetylmorphine, diazepam, flunitrazepam, alprazolam, clonazepam, oxazepam, nordiazepam, zolpidem, zopiclone, lorazepam, morphine, codeine and methadone. Additionally, 28 other drugs will be analysed in 1–12 countries.All whole blood samples are collected in glass Vacutainer-type tubes containing sodium fluoride and potassium oxalate. Based on a comparative study of 10 collection devices, it was decided to collect oral fluid using the Statsure™ device. Since only a small sample volume is available (5–10 mL blood and 1 mL oral fluid), all laboratories have to develop methods for simultaneous detection of the target analytes. All laboratories agreed to use either LC–MS–MS or GC–MS in SIM-mode. Proficiency testing for both blood and oral fluid are organized.Analytical cut-offs were established for the core list based on those used in ROSITA-2, SAMHSA cut-off values for oral fluid and recommendations from an expert meeting in Talloires.Because of practical and legal considerations, different sample types are used: whole blood, serum/plasma and oral fluid. Literature on correlation between analyte concentrations in these body fluids is limited, which makes several comparisons of study results difficult: (1) comparison of epidemiological (blood, oral fluid and urine) and experimental studies (serum and plasma) performed in DRUID and (2) comparisons within the epidemiological studies themselves (most countries: oral fluid in road-side survey, blood in hospital studies).A combination of literature findings, new findings from DRUID and semi-quantitative results will likely have to be used to solve these problems.     

Digital forensic osteology--possibilities in cooperation with the Virtopsy project

In forensic pathology, the reactions that occur in the body from somatic death to cell death are commonly termed "supravital reactions". There are many reports of grossly visible and microscopic supravital reactions; however, few papers are available on the supravital reaction concerning gene expression. The aim of this study was to examine the gene expression of immediate early genes (IEGs) including c-fos, fos-B and c-jun in mechanically asphyxiated mouse brain and lung after somatic death and to identify the IEGs expressed at the point of supravital reaction in the brain and lung. Our results confirm that the expression of IEGs changed after death during supravital reaction and that the alterations differed according to the cause of death and the types of organ examined. In addition, IEG expression significantly increased following mechanical asphyxia. These results suggest that there is a specific pattern of gene expression following asphyxia. It is therefore important to identify the specific genes involved, as this may give significant information to aid in the post-mortem diagnosis of strangulation and hanging.