论作为第三种规范的法律正义

将法、正义、法律正义视为同一事物的意念 ,是一个需待澄清的误解性意念。法、正义、法律正义不仅有重合会通的一面 ,更有各自的界限。法是一种常见的制度规范 ,正义是一种高层次伦理规范 ,而法律正义则是融合了法和正义两种要素的第三种规范。法律正义也是一种正义 ,是正义中的基本正义、有形正义和正义中的强者。法律正义也是一种法律规范 ,是高层次法律规范 ,是区别于恶法劣法的良规良法 ,是理想和现实相结合的法律规范。明辨三者的界限 ,方能洞知法有良恶优劣的分别 ,完整地认知法的面貌 ,倾力于建设以良法美制为基础的现代法治国家     

The Rise of Digital Justice: Courtroom Technology,Public Participation and Access to Justice

This article addresses a little discussed yet fundamentally important aspect of legal technological transformation: the rise of digital justice in the courtroom. Against the backdrop of the government's current programme of digital court modernisation in England and Wales, it examines the implications of advances in courtroom technology for fair and equitable public participation, and access to justice. The article contends that legal reforms have omitted any detailed consideration of the type and quality of citizen participation in newly digitised court processes which have fundamental implications for the legitimacy and substantive outcomes of court‐based processes; and for enhancing democratic procedure through improved access to justice. It is argued that although digital court tools and systems offer great promise for enhancing efficiency, participation and accessibility, they simultaneously have the potential to amplify the scope for injustice, and to attenuate central principles of the legal system, including somewhat paradoxically, access to justice.     

Coming to Terms with the Past in Germany after 1945 and 1989: Public Judgments on Procedures and Justice

Germany presents the unique case of a society that has been forced to come to terms with its past twice within a fifty‐year period. This double experience can contribute to our understanding of the legal processes of lustration. This paper examines a largely neglected dimension of this phenomenon: justice judgments by the general population. Justice judgments about the Nuremberg Trials and denazification after 1945 are compared to analogous procedures that took place in post‐communist East Germany after 1989. The study uses two theoretical models in its comparative approach: the Leventhal model, and the "group value" model of procedural justice set forth by Lind and Tyler. The analysis is based on survey data collected by the Office of the Military Government of the U.S. (OMGUS) from 1945 to 1949, and survey data taken in East Germany from 1989 to 1994. The results lend support to the "group value" model for the specific situation of social transition. During both periods justice judgments developed according to analogous patterns. The German experience yields some important lessons for legal policies of lustration.     

The Nuremberg Trial and its Impact on Germany

The impact of the Nuremberg trial on Germany has changed overtime. It is not only a question of evolving legal debate, butalso a correlation of historical, political and moral developments.The author considers the reception of the International MilitaryTribunal (IMT) trial during the Cold War. West Germany rejectedNuremberg's historic precedent, principally on the grounds thatthe Allies had enforced victors’ justice, and that theTribunal had applied ex post facto law by violating the nullumcrimen principle. Meanwhile, East Germany seemingly took upthe cause of Nuremberg by prosecuting minor Nazi perpetrators.However, this affirmation was politically motivated, and itled to inhumane abuses of power, exemplified by the Waldheimtrials. The reunification of Germany marked the beginning ofa positive approach to the Nuremberg legacy: the new generationof judges, politicians and academics was increasingly sympatheticto international criminal justice, and adopted the Nurembergprecedent by dealing judicially with crimes committed in theEast during the Cold War. The study goes on to deal with therelevance of West German legal critique for modern internationalcriminal law. The author suggests that a distinction shouldbe made between true victims of international crimes and thosewho wish to revise history by portraying themselves as such,as many West Germans did after World War II. Moreover, the ‘victors’justice’ argument must not be used to conceal the factthat justice has indeed been administered. However, the criticismof the IMT's violation of the nullum crimen principle is firmlygrounded in the German, as opposed to Anglo-American, legaltradition.     

Access to justice: a new approach using human rights standards

This article details a trial of a new approach to measuring access to justice that utilises human rights instruments as the reference point. It involves an examination of people's actual experience of the justice system using human rights standards as the benchmark. The research project selected the right to income security. The project trialled a range of methods gathering data about how people have been treated in the Australian social security system and how they would expect to be treated if there was a human right to social security in Australia. This data is assessed against the set of standards developed to measure the enjoyment of the right to social security. The trial suggests that without knowledge about human rights and legal rights, without the confidence to exercise those rights and without the capacity or capability to seek or find help it is unlikely that people will realise their rights and accordingly access to justice is placed in question. The research methodology has the potential to be a useful model to conduct further access to justice research.     

Interrogating absence: the lawyer in science fiction

This article argues that whilst concepts of law and justice can be seen as prominent in much science fiction, the role of lawyer is mostly absent. This article interrogates these absences and asks whether they can be traced back to contemporary concerns around professional ethics. Three potential absences are noted; firstly, justice is considered as immanent. In these fictional futures lawyers have become unnecessary due to the immediacy of the legal system. The second conceptualisation portrays lawyers as intertwined with corporate interests. In these speculative moments lawyers have become culturally indistinguishable from other types of corporate entities. The final science fictive texts highlight a desire for the lawyer-hero. In these texts justice is overwhelmingly absent and shows a continuing need for legal professionals. Each of these cultural moments presents important questions for current understandings of professional ethics and the regulatory systems in which they are based. A removal of lawyers from our shared understandings of the future is indicative of potential problems with perceptions of professional ethics in the present.     

Luhmann: Law,Justice, and Time

Time is central to Luhmann’s writings on social systems. Social systems, as systems of meaning, operate within three dimensions: factual, social and temporal. Each of these dimensions entails selections of actualities from potentialities (or contingencies) within horizons. Whilst the factual dimension involves selections based on distinguishing ‘this’ from ‘something else’, and the social distinguishes between alter and ego (asking with respect to any meaning whether another experiences it as I do), the temporal dimension operates with the primary distinction of before and after. In the temporal dimension, everything is ‘ordered only according to the when and not to the who/what/where/how of experience and action’ (Luhmann in Social systems. Stanford University Press, Stanford, 1995, p. 78). In this paper, we explore the connection between the temporal dimension of meaning within the legal system and its connection to justice. We begin by setting out succinctly the role played by justice within the legal system, as presented by Luhmann, particularly in his book Law as a social system (2004). From this beginning, we move on to consider the relationship between law, justice and time, taking two examples. The first is the temporality of judicial decisions. The second concerns the relationship between the temporal meaning of law’s own operations, and the presumption of innocence.     

法律行为在近代欧洲率先出现的原因辨析--对民事法律行为本质合法说质疑之五

法律行为在近代欧洲的率先出现,客观上至少是由欧洲历史发展中拥有的四个方面的因素所决定的:其一是商品经济之由来已久且最终进化为市场经济;其二是民主政治之贵为传统并最终得以大力普及;其三是个人自由思想之根深蒂固且最终演化为一种主义;其四是“以人为本,一体三维”的世界观与方法论既源远流长且更属于真正的先进文化。而这些因素之在中国古代却既未发生且绝对不可能发生,从而表明主张中国古代就有法律行为之说,自始至终只能是指鹿为马式的肆意编造。     

Discretion at the Pre-Trial Stage: A Comparative Study

This study aims to explore the discretion of the police and prosecutors during the pre-trial stage based on six systems of criminal justice: England and Wales, the United States, France, Germany, Japan, and South Korea. In criminal proceedings, discretion plays a significant role in supplementing as statutes cannot provide for every circumstance. In particular, at the pre-trial stage, public prosecutors can conclude their cases by exercising considerable discretion. Such discretion differs depending on the jurisdiction. The differences demonstrate distinctive prosecutorial roles. Based upon these findings, I propose that in general, the public prosecution service plays a filtering role. Unlike other jurisdictions, in Korea the prosecutors act as monopolists. However, justice cannot be achieved by the monopoly of one legal actor in the criminal proceedings.     

The Purge of Lawyers after the Breakdown of the East German Communist Regime

When in East Germany communist rule broke down, West Germans stood ready to take over. The end of communism also meant the end of the German Democratic Republic state; unification came as unconditional surrender to the western Federal Republic of Germany. The purge of the former regime's leaders therefore became intertwined with the West German takeover. With the takeover came Western politicians, managers, and professionals, forcing East Germans to compete fur jobs and influence. Opportunistic strategies with regard to the future buildup thus mixed with the desires for revenge and justice toward those responsible for the communist past. In this article I focus especially on the screening of the East German legal profession for reemployment in the unified Germany. In the West German tradition the legal profession forms the core of the civil services. In communist states lawyers had remained relatively marginal to the center of political power. Thus Western perceptions of the role of law account for the demise of the East German legal profession. That demise is taking place at a time when the Western regime is in need of many more legally trained people than ever worked in East Germany.     

Procedural Justice in Resolving Family Conflict: Implications for Youth Violence Prevention

The fairness of our legal system is often judged by individuals and the public at large along dimensions of procedural and distributive justice. People seem to care about how legal decisions are made as well as about the specific outcomes reached by juries and judges. In fact, perceptions of procedural and distributive justice or injustice may influence public perceptions and confidence in the legitimacy of our legal system. This paper focuses mainly on procedural justice. Using an ecological framework, we tested the hypothesis that older adolescents use the same or similar criteria for evaluating fairness in the context of family decision making that people in general use to evaluate the fairness of legal processes and decisions. We also tested the hypothesis that family decision-making procedures that are perceived to be unfair contribute to increased risk for acting out and deviant behavior among older adolescents. Principal components analysis confirmed that older adolescents use several distinct criteria for evaluating procedural fairness in the family context and that these criteria are comparable to those that people use to evaluate the fairness of legal procedures (rational and objective treatment conveying personal respect, consistent and non-discriminatory treatment reflecting social status or standing, and instrumental participation or having "an opportunity to be heard"). Hierarchical multiple regression analysis confirmed that procedural justice factors are associated with adolescent deviant behavior. We discuss implications for adolescent deviance and youth violence prevention.     

Social and legal control in China: a comparative perspective

This article exposes the reader to a different social and legal control system and a different way of thinking about crime--that of China. Chinese think positively about the nature of humans and their potential, and China's social control system weaves together a unique combination of formal and informal mechanisms with a strong emphasis on the latter. The criminal justice system constitutes a key element of the social control system, but it appears to be more of a last resort. It is hoped that through a comparative analysis, the reader can develop a deeper understanding of different social and legal systems.     

Psycholegal Scholarship's Contribution to False Consciousness About Injustice

The field of psychology and law began with an avowed focus on social justice. In the past two decades, that focus has been diverted. With justice defined more narrowly than previously, psycholegal research has contributed to false consciousness about the degree to which law reduces injustice and promotes social change. Primary components of false consciousness about law include the belief that procedural justice is more important than substantive or distributive justice, the acceptance of legal doctrines that support corporate capitalism, and the belief that the strict rule of law is inherently superior to individualized equity and commonsense justice.     

Some Questions Pertaining to the Study of Government in the System of Legal Education

Courses in government represent different proportions of the curriculum in the system of legal education in various countries. In bourgeois states, it is usually only the public (constitutional) law of their own country and so-called "political science," often amounting to several years in the curriculum (as in Canada, Ethiopia, etc.), that are studied as general disciplines. The object of political science includes, specifically, a comparative study of the political and legal systems of the world (sometimes a number of subdisciplines are combined with constitutional law to comprise a general discipline — constitutional law and political institutions, as is the case in France, for example); but, basically, "political science" goes far beyond the confines of the study of government. In the bourgeois countries, the other subjects in the field of government are handled as special or elective courses, but their scope is very limited. Legal education as such, in the system of training personnel for the administration of justice, is limited essentially to the study of legal institutions. Higher educational institutions and departments of political science are used in the USA, England, France, the Federal Republic of Germany, Italy, India, etc., to train higher and middle-rank officials.     

The Right to Representation by Criminal Defense Counsel in Ethiopia: A Critical Analysis

This paper explores and critically reflects on the legal foundations and the practice of criminal defense in Ethiopia within the overall due process framework of a fair criminal trial. A brief review of Ethiopian constitutional history shows that the right to representation by legal counsel has been one of the fundamental due process rights granted to accused persons in criminal proceedings. The constitutional right to counsel is, however, not specified by detailed legal provisions. A logical consequence of this is that the enjoyment of this right is fraught with legal and practical problems. While the legal problems, among other things, include obscurity regarding the scope and content of the right, the practical problems include absence of public defense offices at district levels where the vast majority of criminal proceedings take place. Consequently, accused persons appear during trials without the aid of legal counsel; they are in fact deprived of their due process rights and marginalized. This has a number of legal ramifications both to the accused and the criminal justice system. In sum, the constitutional provision of the right to criminal defense counsel is undelivered and remains a hollow promise. It is therefore difficult to uphold the constitutional norms which underlie criminal trial process such as procedural justice, as well as the legitimacy of the government. The justice sectors are responsible to ensuring due process and equal protection. Substantial justice reforms are needed at all levels.     

Unintended and Unavoidable: The Failure to Protect Rule and Its Consequences for Undocumented Parents and Their Children

Parents without immigration status in the United States regularly face the threat of deportation and separation from their children. When an undocumented parent is brought to the attention of law enforcement through the child welfare system, they also face the potential of the loss of legal custodial rights to their children. The child welfare system and immigration enforcement mechanisms operate independent of one another with little regard for how actions in one can impact a parent's legal rights in the other, often permanently separating children from their parents. This article examines the particular issue of undocumented parents who are charged with the failure to protect their children from witnessing or otherwise experiencing abuse committed by a third party. It explores how such a charge, whether founded or unfounded, can result in loss of eligibility for immigration relief to which the undocumented parent would otherwise be entitled, as well as deportation of the parent and permanent separation of parent and child. These issues are situated within the larger context of the normative guideposts of both family and immigration law, namely, the best interests of the child and family unity. It identifies issues for further academic inquiry as well as tips for practitioners who may represent undocumented parents in either the family or immigration systems.

Key Points for the Family Court Community:
• Learn about the potential consequences under family law and immigration law when an undocumented parent's child is abused by a third party
• Gain strategies for planning with undocumented parents to avoid the loss of the custody of their children in the event of a sudden deportation
• Be able to identify and address particular concerns for clients who are undocumented victims of domestic violence

     

Improving justice and mental health systems interactions

Over the last three decades, theorists and practitioners in the field of mental health law have adhered to adoctrinal analysis paradigm characterized by an emphasis on legal doctrine, rational analysis of self-evident, albeit abstract legal principles, and law reform. Acknowledging that the paradigm has been highly successful in facilitating major reform of mental health law, the thesis of this article is that its value for understanding and improving justice and mental health systems interactions is largely exhausted. It urges a “paradigm shift” to an approach that emphasizes the interrelated steps, tasks, and processes in the interactions of the justice and mental healthsystems. It suggests several directions where such a shift might lead: (a) inquiry focused on such organizational components of justice and mental health interactions as court clinics; (b) the development of a meaningful statistical portrait of the number and composition of cases that impact both the justice and mental health systems; (c) a better understanding of the missions, goals, objectives, and administrative structures of the components in the justice and mental health systems interactions; (d) a greater emphasis on the work of trial courts, as opposed to appeals courts; and (e) the development of a new information architecture for the field of mental health law.     

Damaska and the Faces of International Criminal Justice

Mirjan Damaka 's scholarly publications provide important insightsfor the analysis of systems of criminal justice at the internationallevel. This is particularly true for his major book: The Facesof Justice and State Authority – A Comparative Approachto the Legal Process. The book develops ideal types, or models,of the structure and the function of government. As far as thestructure of government, the ideal types of hierarchical andcoordinate officialdom are contrasted with one another. Withregard to the function of government in society, two other mutuallyexclusive ideal types are developed: the ideal type of the purelyreactive state and that of the purely activist state. In thepurely reactive state all state activities are essentially aform of dispute resolution between individual citizens. Consequently,all proceedings take the shape of a contest between two parties.In the reactive state, on the other hand, all law is an expressionof state policies. This entails that all proceedings are essentiallyan official inquiry enabling the state to implement its policies.The four ideal types call for several observations, one of thembeing that, at the international level, there is no authoritythat can be compared to a state. Setting up international criminal courts requires choices withregard to the structure and function of authority. Internationalhuman rights instruments provide no guidance as to the natureof the choices to be made. In particular, they do not indicatewhether the legal process should be structured as a contestbetween two parties or as an official inquiry. The same is truefor empirical evidence. An analysis of the structures of authority in internationalcriminal courts reveal that they represent hybrids of the hierarchicaland the coordinate ideal types of officialdom. The fact thatthese courts are unitary courts has a profound effect on evidentiaryarrangements. The most important issue raised by the exposition of ideal typesof The Faces of Justice concerns the relationship between thegoals of international criminal justice and the appropriatelegal process to serve their realization. Goals of a conflict-solvingnature are best served by a legal process structured as a contestbetween two parties and goals related to the implementationof policies by a legal process structured as an official inquiry.It is therefore essential to determine what goals are beingpursed by international criminal courts. One may distinguishhere between goals that international systems of justice mayor may not have in common with national systems of criminaljustice. The pursuit of the traditional goals of criminal justicecommon to international and national systems of justice doesnot provide compelling reasons to prefer either a contest modelor an inquest model of the legal process. This is different,however, for the idiosyncratic goals of international criminaljustice that set apart international systems of criminal justicefrom national systems. The pursuit of these goals makes it desirablethat historical facts are established as accurately as is possiblein the given circumstances. They are, therefore, best servedby a legal process that takes the shape of an official inquiry.In the hybrid type of procedure adopted by the ICTY there isinsufficient clarity about the procedural status of the peculiargoals of international criminal justice as well as about theuse of procedural means to pursue them. This entails that itis not really possible to determine whether this hybrid representsa success. Hybrid types of procedure cannot truly exist withoutadopting a view with regard to the impartiality of judges thatis inspired by standards enshrined in international human rightsinstrument rather than those that are characteristic for thelegal process shaped as a contest between two parties.     

Applying social psychology: The case of redistributions in unified Germany

Large redistributions between West and East will be necessary within the unified Germany for a long time. The perceived justice of these redistributions is discussed, applying theory and evidence from social justice research and research on prosocial behavior. Views about just distributions and entitlements vary according to the preferred principles of distributions and according to attributions of responsibility for existing inequalities. It is, hypothesized that acceptance of redistributions in West Germany depends on whether the East is seen as having been unjustly disadvantaged after World War II when it was assigned to the influence sphere of the Soviet Union. This fact can be considered in analogy to an exploitation of the East by the West. On the other hand, the economic, problems in the East may also be considered self-inflicted by the former communist regime. A key question is what the attitudes of the population in the former GDR had been toward the communist regime. If the population is considered the victim of the regime, it is entitled to get support; if it is considered to have been sympathetic toward the regime, this is not the case. Acceptance of redistributions depends not only on their justice but also on their efficiency. The relative weight of justice and efficiency depends on the reasons given for the support. If support means repaying debts that were accumulated during the preceding period of being undeservedly privileged in the West, justice will remain the dominant criterion. If support is justified by actual neediness of the East, it will only be granted as help to self-help. Claims for discontinuity of support are expected if it will not be efficient in a near future. Some dangers concerning the integration of the two populations are outlined by listing some potential conditions for a growing distance and reciprocal discrimination up to a reciprocal ethnification between the Eastern and the Western populations.     

Social justice jurisprudence of clinical education programme: A paradigm shift from legal education to justice education

The legal profession has remained relevant in bringing about positive transformation in society — with leaders, policymakers, and change makers around the world mostly possessing a background in the law. That said, the trust, and positive image, enjoyed by legal professionals continues on a declining path. Considered more glamorous, the legal profession has gone astray from the path of social justice. In this article, I argue that the negative perception of legal professionals is, in large part, because of the way legal professionals are taught and trained in law schools. I argue that legal teaching pedagogy in South Asia, and generally in developing countries, is a product of colonial structure. Even after the so-called decolonisation movement, law schools and universities, for example in South Asia, institutionalised a legal pedagogy unsuited to the epistemic actualities of their societies. A law student in South Asia was and continues to be taught the Western conception of what the law is and its relationship to justice. In a legal culture carrying the transplanted laws of the colonisers, the students of developing countries are meticulously trained in the technical skills of reasoning and interpretation by applying Eurocentric guidelines of positivist construction. In light of this, I propose a shift in legal education: to transform the existing legal education and pedagogy into ‘justice education’. I focus on the ancient principles — located in the Eastern legal philosophy — of empirical reasoning and the importance of the human nature of sociability in arriving at social justice. To combat the tendency of insulating law students from societal problems, I propose a social justice-driven legal pedagogy. I have also reflected on some practices that ‘are’ and highlighted other practices that ‘ought to be’. My thesis connotes that the legal profession has an innate role in building the capability of individuals who are deprived and excluded. In line with it, I present examples of scalable clinical legal education being practised specially by the Kathmandu School of Law that can create multidimensional legal professionalism.