The double helix of rule of law and EU competition law: An appraisal

By discussing the experiences of Hungary and Poland, this article aims to demonstrate that there are three layers of the rule of law which are relevant for EU competition law. The first one is external: it relates to the legal system of EU Member States of which competition law is a part. In national legal systems, rule of law safeguards need to be put in place in order to provide an adequate legal environment for the competition law system to perform its role. The second one is internal: it concerns rule of law safeguards in relation to the Member States' competition authorities, in particular their independence. The third one is consequential: the weakening of the rule of law within the external and internal layers affects the proper functioning of the competition law system. As a result, the effectiveness of Articles 101 and 102 TFEU is endangered, and a vicious circle of mutually reinforcing competition law and rule of law crises unfolds.     

经济法“国家干预”法律机制的探讨

为应对席卷全球的金融危机,世界各国政府对市场经济采取了各式各样的干预手段,使国家干预成为当今最热门的话题,其重要性勿庸质疑。经济法作为国家干预市场经济的法律规范,应具有其固有的法律价值和规范模式。文章通过对经济法语境下＂国家干预＂内涵的分析,从经济法律规范的逻辑设计和规范结构剖析经济法对＂国家干预＂的规范模式。     

两大法系惩戒性军事法概要

莫里斯与古斯塔夫斯的《战争法典》对两大法系惩戒性军事法的形成起到了奠基作用。在两大法系主要国家,惩戒性军事法以军事司法权的运作为核心,主要围绕军事司法管辖权及军事司法程序构建军事司法制度。20世纪50年代以来,受《欧洲人权公约》及《联合国公民权利和政治权利公约》的影响,两大法系惩戒性军事法的发展又呈现出了一些新的特点。     

The Traditionality of Statutes*

Abstract. The author begins by sketching the characteristics or elements of every tradition. Some reasons are then suggested for the propensity of so many authors to contrast statutes with other, allegedly more traditional kinds of law. However, it is argued that statutes are deeply embedded, along with customary and judge-made law, in the highly traditional practices of law and that this matters much more than is commonly suspected. The thesis being defended here is not merely that law includes traditions along with rules, principles, maxims, and so on, but rather that legal systems should be understood as traditions, albeit highly complex ones. Not only are ancient legal systems (the Talmudic, for example) held to be traditional; modem legal positive orders are viewed as being traditional too. Finally, the concept of “communities of interpretation” is applied to the contemporary posited statutes which are believed by many to be a distinguishing feature of modem legal systems.     

A Case Against Crippling Compensation in International Law of State Responsibility

The obligation of States to provide full reparation for internationally wrongful acts, including by full compensation, is one of the bedrock principles of international law. The article challenges this principle for cases where compensation is crippling for the responsible State or its peoples, which can occur when State responsibility is implemented before international courts and tribunals. The International Law Commission's decision not to qualify full reparation for instances of crippling compensation in its influential Articles on State responsibility was an unpersuasive legal position to adopt in 2001, and its rationale has aged badly. However, the failure by States and other actors to challenge it in the following two decades signified its endorsement by the international legal process. Nevertheless, the case against the permissibility of crippling compensation in modern international law can still be made, both on a case-by-case basis and at the level of customary secondary rules of State responsibility.     

The Legal Basis for Using Principles in WTO Disputes

This article argues that the use of principles in WTO disputeresolution is both necessary and desirable. However, Panelsand the Appellate Body (WTO Tribunals) have often ignored principlesor not clearly identified the legal basis for their use. Thisarticle establishes a framework for the use of principles (inparticular principles of WTO law, principles of customary internationallaw, and general principles of law) in WTO dispute settlement.Broadly, WTO Tribunals can use principles drawn from these categoriesto interpret WTO provisions, based on Article 3.2 of the DSU,and Articles 31 and 32 of the VCLT. This follows most directlyfrom a teleological approach to interpretation, but principlesalso feature under subjective and textual approaches to interpretation.WTO Tribunals may also use certain principles in a non-interpretativemanner. Indeed, this may be necessary, particularly to addressprocedural issues. Precisely how a principle may be used dependson its type, content and status.     

Legal education in the training of health professionals in Ghana: the need for legislative and curricular reforms

The present paper critically analyses the essence of legal education in the training of medical professionals in Ghana. It argues that health professionals lack the requisite knowledge in law, especially the legal implications of medical malpractice, and calls for legislative and curricular reforms in institutions engaged in the training of health professionals to reflect a legal education component. The authors opine that the basic medical law curriculum should be focused on the kinds of legal problems that physicians encounter most frequently in practice rather than on sensational cases. The authors are of the view that the curriculum should address the clarification of central concepts in law, the ability to apply the concepts, decision‐making procedures, acquisition of legal knowledge in tortuous and criminal matters relevant to the medical profession. This view sets objectives for teaching medical law to medical students and young doctors.     

Epistemological Perspectives in Legal Theory

Abstract The authors deal with several important epistemological problems in legal theory. The Nineteenth century background is analyzed from the emergence of legal science freed from the constraints of natural law and built on the model of the empirical sciences. The authors show how this science of law has been influenced by the social sciences and trends in ideological criticism throughout the Twentieth century. The epistemological question central to legal science is tackled, i.e., what kind of “epistemological break” should there be with regard to the object studied? To answer this question, the authors plead for the adoption of a “moderate external point of view” which bears in mind lawyers' “internal point of view.”     

The legal status of clinical and ethics policies, codes, and guidelines in medical practice and research

This article examines the legal status of "soft law" in the fields of medicine and medical research. Many areas of clinical practice and research involve complex and rapidly changing issues for which the law provides no guidance. Instead, guidance for physicians and researchers comes from what has often been called "soft law"--non-legislative, non-regulatory sources, such as ethics policy statements, codes, and guidelines from professional or quasi-governmental bodies. This article traces the evolution of these "soft law" instruments: how they are created, how they are adopted within the professional community, and how they become accepted by the courts. It studies the relationship between soft law instruments and the courts. It includes an examination of the approaches to judicial analysis used by the courts in theory and in practice. The authors then examine the jurisprudence to see how courts will adopt professional norms as the legal standard of care in some circumstances and not others. They consider the legal concerns and ethical issues surrounding the weight attached to professional practices and norms in law. The authors demonstrate how practices and policies that guide professional conduct may ultimately bear weight as norms recognizable and enforceable within the legal sphere.     

Preparing law graduates for a globalised world

In this article it is argued that law graduates need to be prepared for working in a global legal context. Whether working in global law firms or small, local non-global law firms, law graduates need to have the knowledge, skills and attributes that will better equip them to work within and across multiple, international legal jurisdictions. The purpose of the article is twofold: first, to report on and disseminate research on a collaborative project on internationalising the Australian law curriculum aimed at preparing law graduates for global legal practice, of which the authors were the lead researchers; and second, to discuss and demonstrate the practical application of the proposed curriculum framework to the teaching of Constitutional Law.     

伊拉克战争对国际法治的冲击和影响

美英发动的伊拉克战争对国际社会提出了一系列值得认真思考的国际法问题。本文着重探讨这场战争对国际法基础的冲击以及违反联合国宪章规定非法使用武力问题 ,探讨在国际武装冲突中实施国际人道法面临的困境。在此基础上 ,作者提出了加强国际法治的若干建议。     

John R. Commons and Max Weber: The Foundations of an Economic Sociology of Law

This article underlines contemporary economic sociology's lack of interest – until recently – in legal phenomena, unlike the close attention paid by two historic figures in ‘economic sociology’, Max Weber and John R. Commons, to the relationships between law and economy. It argues that to grasp fully the importance of the legal dimension in socio‐economic analysis, we must return to their foundational insights. However, they particularly stress differences between Weber and Commons as to the unity or heterogeneity of law and the economy, the role of ethics, the search for an all‐encompassing approach in the construction of ideal‐types, the various forms of constraint that characterize law (whether psychological, economic, or physical), and the distinction between state law and non‐state law. The latter element is why the authors argue that due consideration for legal plurality should be a central thread in any sociological analysis of the interplay between law and the economy.     

The law commission and judicial law reform*

This article explores ways in which mooting can provide high school students with insight into life as a law student. In gaining high school students’ insights on their early exposure to a legal research skills environment involving oral argumentation exercises, the authors argue that law schools can incorporate experiential learning pedagogies into student recruitment efforts to ensure that both law school and prospective student are better prepared for each other during the delivery and study of law at university level.     

动物"权利主体论"质疑

动物的权利主体地位论使传统的法学理论面临严峻的挑战。对动物的道德关怀并不能必然导致动物成为权利主体。从立法目的、法律关系、法律逻辑的角度分析,这一论断不能成立。     

刑法条文理解与适用的证据法学向度

刑法条文的解释不能仅仅局限于单纯刑法学范畴,对有些刑法条文的理解需要结合证据法学的相关内容来思考其含义和适用规则。基于此,认为在犯罪之间设立界限和区分标准不利于犯罪认定的观点,是对证据法裁判原则存在误解的表现。污染环境罪、滥用职权罪与玩忽职守罪等犯罪的主观罪过形式应同时包含故意和过失,其目的是为了解决主观要件的证明困难问题。不能依据犯罪论体系的推定机能将正当防卫的证明责任交由被告方承担,证明责任的分配应主要依据刑事诉讼法的相关内容来确定。对于《刑法》第238、247、289、292条等存在法律拟制和注意规定之争的法条,如果从证据法学角度将其理解为刑事推定,可以克服法律拟制说和注意规定说的缺陷。     

Regulating electronic identity in the European Union: An analysis of the Lisbon Treaty’s competences and legal basis for eID

This paper discusses the feasibility of EU legal action in the field of electronic identity (eID) within the new distribution of legal competences and the provision of novel legal basis engendered by the Treaty of Lisbon. The article attempts to find a ‘legal anchor’ to the idea of a pan-European electronic identity within EU law, looking at the issues of competences and legal basis. After examining various different areas of competence and the most feasible (and probable) candidates for a legal basis supporting an EU legal framework for eID, the paper argues that the latter should be found in the combination of Article 16 TFEU (concerning the right to the protection of personal data) with Article 3 TUE, and Articles 26 and 114 TFEU (concerning the establishment and functioning of the Internal Market), which also constitute the area of competence where an eID legal initiative can be pursued.     

法理即法律原理之解说

自清末民初以来,将法理解说为法律原理就成为法学界的通例,但其界定方式则有四种:一是径直以法律原理定位法理;二是将法律原理、法律原则并列来定位法理;三是将法理视为由法律原理推导出的法律一般原则;四是认为法理是指法律原则,但包括法律原理在内。法理和法律原理的存在是一种客观的必然:世上的万事万物都应有其存在和运行的原理,法律自然也不例外;法律作为人类的伟大创造,自身即蕴含着追求正义等法律价值的法理;法律的价值观念虽因时代、地区的不同而会有所差异,但其中的基础法理却不受时空影响;对法律的分析和研究舍法理之外别无他途。立足于已有的研究成果,可将法理界定为"在综合各种法律现象的基础上,由学者所抽象并为社会所认同的有关法律基础、法律根据、法律判准、法律渊源的基础性、普遍性原理"。同时,法理与自然规律、社会价值、内存于法典和单行法律中的法律原则以及事理、情理等存在明显的差异,不可混淆。     

Taking Language Seriously: An Analysis of Linguistic Reasoning and Its Implications in EU Law

This article discusses legal reasoning at the European Court of Justice (ECJ). The following questions are addressed. First, the authors look at the way linguistic arguments are used in ECJ case‐law. Second, they consider whether the requirements of legal certainty, and more specifically that of predictability, may be fulfilled by reference to linguistic arguments in a multilingual legal system. The theoretical starting‐point is that of open‐endedness of language: no means exists to definitely pin down the meaning of words. Defining the meaning of words in a legal context is necessarily a matter of choice involving evaluative considerations. Consequently, when the ECJ uses linguistic arguments to justify a decision, it is an active agent choosing the meaning of words in a specific case. Essentially, the authors argue that legal reasoning based on linguistic arguments is particularly problematic from the viewpoint of legal certainty and predictability. In this respect, the key importance of systemic and teleological argumentation is emphasised in assuring convincing, acceptable and transparent legal reasoning especially in the context of multilingual EU law.     

The Distance Selling Directive: Points for Future Revision

The EU Distance Selling Directive that was implemented in UK law in the Consumer Protection (Distance Selling) Regulations 2000 has provided guidelines for the protection of consumers undertaking distance transactions. The following paper discusses the provisions of the Directive with particular reference to e-commerce via the Internet, highlighting some possible areas for further consideration. Articles within the Distance Selling Directive are examined for problems of legal interpretation and implementation. There is discussion of: Article 2 (Definitions) and difficulties with its fundamental concepts of 'supplier' and 'consumer'; unnecessary exemptions in Article 3 (Exemptions); the 'local taxes' headache (and others) in Article 4 (Prior Information) and using e-mail under Article 5 (Written Confirmation of Contract). Under Article 6 (Right of Withdrawal), the 'cooling off period', exempted goods and services, refunds and reclaiming goods, and for Article 7 (Performance) substitute goods and contract law implications, are investigated. Finally Article 8 (Payment by Card) looks at protection against fraudulent card use.     

Towards a Hierarchy of Legal Acts in the European Union? Simplification of Legal Instruments and Procedures

Abstract A remarkable feature of the Union's legal order is the absence of a genuine hierarchy of legal acts—a pre‐established ranking of different types of legal acts in accordance with the democratic legitimacy of their respective authors and adoption procedures, which is used as a means to resolve conflicts among these different types of legal acts. There is however a clear suggestion of such hierarchy in the sequence in which the newly created legal instruments are listed in Article I‐33(1) and in the organisation of the subsequent Articles I‐34 to I‐37 of the European Constitution. In this contribution, the (lost) logic behind the Union's current set of legal instruments is analysed, followed by an examination of the reform of the system of legal instruments carried out in the European Constitution. Lastly, an attempt is made to answer the question as to whether this reform amounts to the establishment of a genuine hierarchy of legal acts in the Union.