The Dead, the Law, and the Politics of the Past

This article explores the role of law in cultural and political disputes concerning dead bodies. It uses three interconnecting legal frameworks: cultural and moral ownership, commemoration, and closure. It begins with a critique of the limitations of the private law notion of 'ownership' in such contexts, setting out a broader notion of cultural and moral ownership as more appropriate for analysing legal disputes between states and indigenous tribes. It then examines how legal discourses concerning freedom of expression, religious and political traditions, and human rights and equality are utilized to regulate the public memory of the dead. Finally, it looks at the relationship between law and notions of closure in contexts where the dead have either died in battle or have been 'disappeared' during a conflict, arguing that law in such contexts goes beyond the traditional retributive focus of investigation and punishment of wrongdoers and instead centres on broader concerns of societal and personal healing.     

Fatality management in mass casualty incidents

Medical involvement in mass casualty incidents requires proper planning and preparedness. In disaster situations, legal aspects concerning the dead add to the general problem of a lack of time, place and resources to maintain routine working conditions, and demand authority and competence. The aspects of planning the recovery of the dead, transportation and morgue facilities, establishment of cause of death, identification, and the final disposition of the dead are discussed. The implementation of forensic mass fatality teams is felt to be the right answer for a better planning and coordination.     

Use of the dead body in healthcare and medical training: mapping and balancing the legal rights and values

By exploring the central legal principles and issues regarding usage of the dead body in healthcare and especially in medical training, this article aims at drawing some general conclusions on the legal status of the dead body and the protection of the deceased's integrity, dignity and autonomy. The article demonstrates that the use of the cadaveric body for scientific and educational purposes involves a redrawing of the traditional boundaries between the decent and the indecent, making these acts acceptable that would otherwise be regarded as assaults on the sanctity of bodily boundaries. This is made possible by the fact that the underlying principle of dignity is not perceived to be of an absolute nature when applicable to deceased persons.     

Why Methods Matter in European Legal Scholarship

Both in the United States and in Europe, there is a debate on methodology in legal research. Doctrinalists and multidisciplinarians appear to be in different camps fighting over the ‘true nature’ of legal scholarship. We wonder where this renewed attention for methodology is coming from and what is behind it. Should European legal scholars follow certain colleagues in the United States who believe that doctrinal research is dead and should we all engage in law and … research now? If not, does this imply that there is nothing wrong with mainstream European doctrinal legal scholarship? We believe the latter is not the case. Our hypothesis is that an ongoing instrumentalisation of law and legal research decreases the attention for methodology, for theory building, and for keeping enough professional distance to one's object of research. This threatens to result in a creeping process of herd behaviour, in copy pasting the methodology of judicial lawmaking to legal scholarship and in a lack of transparency and methodological justification in scholarly legal publications. What is desperately needed is more reflection on methodology and theory building in European legal scholarship.     

2008年中国法治政府建设大盘点

2008年中国法治政府建设伴随着依法治国,建设社会主义法治国家的进程迈出了坚定的步伐。在这一年,中国的法治政府建设围绕无边大爱这一新的历史主题,开始了行政程序建设的新实践,同时围绕着限制公共权力、信息公开、有权必有责等主题,实践了新的法治政府追求,为和谐中国奠定了坚实的基础。     

“杨佳的说法”与杀人逻辑的权利悖论

杨佳的个人尊严维护中"讨说法"与其恶意杀人之间存在着社会价值观念异常即轻视生命权利的社会氛围支持。在弱个体仇视某一职业强群体的社会学视野中,仇警文化是一种社会价值观念个体异常向群体异常演进的表现。而在法律经济学视野,1个人"讨"的所谓说法,等于要6个人生命的死亡、5个人身体的受伤,而竟然会有那么多网友叫好,则是一种忽视生命权利,在生命权与人格尊严之间,价值选择的错位。至于法律文化学领域,人权的核心是生命权,人存在的本源意义当中,生命权应当高于人的尊严,杨佳为了所谓的个人尊严而可以乱杀人的逻辑,是非常荒谬的。     

环渤海地区水权法律问题初探

环渤海地区水资源分布不均衡，水权法律制度的缺失成为桎梏环渤海区域经济发展不平衡的因素之一。水权是一个综合性概念，水权法律制度的建构是一个综合性立法过程。因此，通过原有的取水许可制度向水权初始分配制的转换，实现水资源国家所有权分离,从“转化式”向“授予式”过渡是水权法律制度建构的重要途径。同时，《反垄断法》与《环境保护法》相关制度的配套建设，也是环渤海地区水权法律制度综合建构的一部分。     

The importance of being dead: non-heart-beating organ donation

There is no definitive answer to the question of how long one must wait, after a person's heart stops beating, before concluding that the person meets the heart-lung criteria for death. This question has assumed new importance with attempts to remove transplantable organs from people declared dead using those criteria. An examination of the legal definition of death suggests that organs are indeed being procured from some of these people prior to their being legally dead. Moreover, the fact that the donors have consented to these procedures does not eliminate reason for concern regarding this state of affairs, since patient autonomy must at times be overridden in pursuance of important social goals.     

Arising from the dead: challenges of posthumous procreation

The medical capabilities derived from modern reproductive technology, such as in vitro fertilization and cryopreservation, have enabled physicians and scientists to intervene in the procreative process in innumerable ways. However, this intervention in the natural reproductive process raises both moral and legal concerns. In this Article, Professor Schiff explores some of the conflicts that may result when an individual or couple elects to cryopreserve gametes or embryos and subsequently, one or both of the contributors dies, or when gametes are harvested from a dead body. This Article will specifically address the moral and legal responses to circumstances where the decedent has either clearly expressed opposition to posthumous use of the reproductive material or else the decedent's intent regarding posthumous use of the material is ambiguous. By discussing philosophical and moral positions relating to personhood and the body and analyzing legal issues such as reproductive choice and organ donation, Professor Schiff creates the necessary format to examine and recommend the proper legal treatment of this controversial aspect of posthumous procreation.     

The Relationship between Legal Systems and Economic Development: Integrating Economic and Cultural Approaches

This paper seeks to demonstrate the need to bridge the gap between the economic and culture-based approaches to two issues which are fundamental to the debate over the relationship between legal reform and economic development: (a) the relative importance which economic actors around the world place on the legal system and (b) the core components of an effective legal system, as defined by those economic actors. It first outlines the major tenets of current economic legal reform policy, focusing on its underlying assumption that the perceptions and expectations of economic actors around the world do not vary significantly. Data from Geert Hofstede's study of variance in cultural values are then analysed in order to demonstrate how cultural values might affect private sector perceptions and expectations of legal systems as supporters of material progress. It concludes that there is a clear need for a more interdisciplinary approach to the debate over the relationship between legal reform and economic development, and the potential variance in private sector perceptions and expectations of legal systems in particular. Such an approach might be initiated through a systematic integration of existing data and theory from each discipline, reinforced by a new multi-country survey.     

Legal Meaning Assumptions – What are the Consequences for Legal Interpretation and Legal Translation?

In this article, I discusssimilarities and differences between legaltranslators and legal interpreters. Thediscussion is centred around the impact thatthe choice of background assumptions as tomeaning of linguistic items in legal texts hason the way lawyers and translatorsconceptualise their own work, respectively. Thedispute between proponents of a strong and aweaker approach to legal meaning in legalinterpretation is presented and the relationsto legal translation is investigated. By way ofconclusion I present some of the majorconsequences for legal translators of optingfor the empirically more easily justifiableweaker approach.     

Accidental strangulation in a rickshaw

A 40-year-old female was accidentally strangulated by a ‘Chunni’ (piece of cloth worn around neck) while travelling in a cycle rickshaw. She was declared dead on arrival in the hospital. This case highlights the hazards of wearing cloth loosely around the neck while travelling in a rickshaw which is a common mode of transport for short distances in India and other South-East Asian countries.     

Breaking through the silence: illegality of performing resuscitation procedures on the "newly-dead"

Israeli author Daniel Sperling brings to a light a disturbing practice that is taking place in some teaching hospitals throughout the world--the practice of resuscitation procedures on newly dead patients without the consent of the next-of-kin. Mr. Sperling examines some of the policies and procedures in place to prevent such practice and also looks at the ethical principles that should guide such procedures. The paper also reviews the general issue of consent in the context of medical decision-making and discusses potential legal claims that might be available to persons who have not been consulted or informed before such procedures are performed. The evolving jurisprudence surrounding the treatment of the newly dead is analyzed and Mr. Sperling concludes by suggesting ways to improve upon the procedures currently in place at some teaching facilities.     

利用影响力受贿罪若干问题解读

《刑法》第388条之一是关于利用影响力受贿罪的规定,该法条来源于《刑法修正案(七)》第13条之增设性规定,旨在从严预防和惩治贿赂犯罪。尤其是针对以往不具有国家工作人员身份的人(主要是国家工作人员的"身边人"以及离职的国家工作人员和他们的"身边人"等)索取或收受贿赂后因惩处缺位而借以逃脱法律制裁的状况,立法上作出了相应的改进。然而,在增设了利用影响力受贿罪这一罪名后,必须考虑其与原有的贿赂犯罪罪刑体系如何衔接与协调,特别是有必要对该罪的罪名确定、主体范围、行为特征以及司法适用等问题进行深刻地解读。     

社会主义法治理念:中国百年法治文化的第三波

法治文化当于百年前后论升降。从辛亥革命前后开始兴起的百年中国的法治文化大潮,依次涌现出了三股此起彼伏的波澜。法治文化的第一波,是20世纪初期开始的国家主义法治理念,其核心价值是国家富强。第二波是20世纪80年代开始的自由主义法治理念,其核心价值是个人自由。2006年正式提出的社会主义法治理念,作为超越于国家主义法治理念与自由主义法治理念的法治文化形态,代表了中国百年法治文化的第三波,其核心价值是公平正义与社会和谐。百年中国先后兴起的三波法治文化大潮,其演进规律,恰好体现了百年中国的法治文化从"正题"到"反题"再到"合题"的辩证法。     

法律原则在法律推理中的地位和作用——一个比较的研究

我国关于法律原则的讨论一般集中在立法过于笼统与立法所规定的法律基本原则这两个方面。这种意义上的法律原则与德沃金所说的法律原则存在重要区别。德沃金关于法律原则的讨论其目的是强调法律的确定性 ,而我们关于法律原则的讨论却在强化法律的模糊性。法律原则的讨论主要涉及法律推理过程中原则与规则之间的关系。基于法治的原因 ,法律推理必须坚持将法律规则作为法律推理的大前提 ;在法律规则含义不明确、模糊或者相互矛盾时 ,可以使用法律原则 ,但是 ,必须经过一定的法律原则的认定程序。     

法律教育四题

任何国家的法律教育都必须面对和处理四大具有普遍意义的关系:学术教育与职业教育,专才教育与通才教育,教育机构与职业机构,院校自治与公共管理。中国法律教育的改革与发展,应以世界各国的法律教育的共同经验为基础,合理地处理好法律教育中的四对基本关系。     

进化论思潮与近代中国法制现代化

进化论作为近代中国一种社会思潮,它急速涨涌于戊戌前后,主宰了直至五四前后的近代中国思想界。它吹响改良派法制现代化思想启蒙的号角,成为榫接新民主主义法制现代化的先导,对于近代中国法制现代化运动起了一定程度的推进作用。     

New Legal Realism and the Ethnography of Transnational Law

The new legal realism builds on the strengths of the legal realism of the early twentieth century, viewing law as a set of social processes embedded in historical and political contexts. As it addresses sociolegal phenomena of the early twenty-first century, however, the new legal realism is more attentive to the effects of transnationalism, legal culture, and legal consciousness, and the way ideas and norms travel and are adopted around the world. Asking questions of this kind requires new, more multi-sited or deterritorialized methods of scholarship. This article explores these new perspectives and their methodologies through an examination of the use of human rights in the international movement against violence against women.