Laws of Inclusion and Exclusion: Nomos,Nationalism and the Other

This article explores how and why contemporary nationalist ‘defence leagues’ in Australia and the UK invoke fantasies of law. I argue these fantasies articulate with Carl Schmitt’s theory of ‘nomos’, which holds that law functions as a spatial order of reason that both produces and is produced by land qua the territory of the nation. To elucidate the ideological function of law for defence leagues, I outline a theory of law as it relates to (political) subjectivity. Drawing on the work of Foucault, Agamben and Brown, I demonstrate how subjects form and are formed by historically contingent relationships to law in the contemporary neo-liberal moment. Turning to Lacan, I show how nationalistic invocations of law provide nationalists with a fantasy that the nation’s law represents them and holds them together (as the nation itself). Similarly, I argue that nationalists imagine that the other has their own law as well, which not only corresponds to the other, but functions as a legible index of the other’s otherness—a metonym for the threatening uncertainty and radical difference that the other represents. Drawing on Lacan’s concept of the big Other, I ultimately argue that nationalists aggressively (re)assert law not only to defend the nation, but to ensure their own symbolic and ontological security therein.

     

对行政机关滥用职权的司法审查

Through the analysis on three typical cases, it is believed why courts rarely make judgments directly based on the review criteria of“abuse of power” pursuant to article 54 of the Administrative Litigation Law is mostly that the relevant legal provisions are not clear. Besides, in hearings, judges are more inclined to use“conversion techniques”. Meanwhile, it is further revealed of the issues existing in the substantive review of courts. Yu Lingyun is a professor of law at Tsinghua University, Beijing. His main researches include administrative discretion, legitimate expectation, administrative contract, law enforcement, case method and police law. He has released a number of articles, such as Legitimate expectation in administrative law (2003), Pseudo-contract in administrative law (2001), Remedial system of administrative contract (1998), Legitimate expectation in administrative guidance (2007), The construction and development of special administrative law (2006), The scope of judicial review in the administrative litigation law (1992), Experts consultation in government rule-making (1995), Reflection on administrative coercive execution (1998), Compatibility of administrative contract to the characteristics of administrative law (1998), On investigation in resident permission system (1998), The rule of law and administrative contract (1998). His monographs include Administrative Contract (Renmin University of China Press, 2000), Administrative Discretion (China People’s Public Security University Press, 2005), Preventing and Remedies of the Abuse of Police Power (China People’s Public Security University Press, 2002).     

The Common Law and the Forms of Reasoning

The purpose of this article is to examine how various forms of reasoning both can and should be used to decide cases in the common law tradition. I start by separating positive questions about what the law is from normative questions about what the law ought to be. Next, I present a Peircean account of three main forms of reasoning – deduction, induction and abduction – and examine how they can be used by judges to decide cases in the common law. Finally, I argue that the three forms of reasoning can be used to answer both kinds of questions, but in different ways. All three forms of reasoning can be used to answer questions of positive law, while questions of normative law present a special case that may require the use of aesthetic judgments of taste in the formation of a legal hypothesis.     

Experimental evaluation of rigor mortis I. Histochemical analysis of rat skeletal muscle in the early post-mortem period

Histochemical investigation of rat skeletal muscle samples removed immediately post mortem from exercised rats gave the following results:

1. (1) Of the oxidoreductase enzymes studied, there was a slight increase in the activity of cytochrome oxidase.

2. (2) There was no change in the acid- and alkali-stable actomyosin ATPase activity.

3. (3) There was a notable decrease in glycogen concentration.

In the case of strychnine intoxication:

1. (1) There was no change in oxidoreductase enzymes.

2. (2) There was an increase in the activity of alkali-stable ATPase in white fibres.

3. (3) The glycogen concentration notably decreased.

There was no change in the activity of enzymes studied in those animals sacrificed by anoxia.     

The challenge of identification following the tragedy of the Solar Temple (Cheiry/Salvan, Switzerland)

On October 5, 1994, 48 members of the Sect of the Solar Temple were found dead at two different locations in Switzerland: 23 victims in Cheiry and 25 victims in Salvan. Our Institute was commissioned to solve the forensic problems presented by this tragedy. Our goals were to establish the time of death, determine its causes, help elucidate the surrounding circumstances and identify the victims. This work presented us with the following challenges

• this catastrophe was of an ‘open’ type: there were no lists of ‘passengers’;

• the victims were of five different nationalities and many had just arrived in Switzerland to participate in this event;

• family ties were very complex within the group;

• half of the victims were burned and sometimes charred;

• the exceptionally intense media coverage of the story put a lot of pressure on the investigators and our Institute.

In spite of these difficulties, all the victims were positively identified within 1 month. In the present report, we describe the steps realized to progress in our work. A special section describes our relationship with the journalists and their invaluable help in our investigations. The importance of being prepared for such an event is discussed.     

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Between the Law: The Unmaking of Empire and Law's Imperial Amnesia

Asian victims of Japanese imperialism have filed lawsuits against the Japanese government and corporations since the 1990s, which became prime sites for redress decades after Japan's defeat in World War II. As this ethnography demonstrates, this process paradoxically exposes a legal lacuna within this emergent transnational legal space, with plaintiffs effectively caught between the law, instead of standing before the law. Exploring this absence of law, I map out a post‐imperial legal space, created through the erasure of imperial and colonial subjects in the legal framework after empire. Between the law is an optic that makes visible uneven legal terrains that embody temporal and spatial disjuncture, rupture, and asymmetry. The role of law in post‐imperial transitions remains underexplored in literatures on transnational law, legal imperialism, postcolonialism, and transitional justice. I demonstrate how, at the intersection of law and economy, post‐imperial reckoning is emerging as a new legal frontier, putting at stake law's imperial amnesia.     

Hollow law and utilitarian law: The devaluing of deportation hearings in New York City and Paris

How is law made worthless to the marginalized? Drawing on ethnographic observations in Paris and New York City, I establish a typology of devaluation practices in deportation hearings. I analyze how informal court practices devalue court actors, the hearing, and the law itself. Despite different levels of formal protections for migrants, deportation adjudication is pared down and devalued in both cities. This devaluation, however, followed distinct logics. New York hearings were characterized by a utilitarian law logic, where process and ritualistic elements deemed inessential were shed, leaving a stripped-down core focused on case processing. The minimal protections available to migrants were weakened further. By contrast, hollow law emerged in Parisian hearings, where everyday court practices eroded the more generous protections granted to migrants through formal law. While analyses of immigration adjudication have focused on decision-making, determinants of legal outcomes, and the interpretation of formal criteria, I instead conceptualize the courtroom as a space where value is actively unmade through informal practices, drawing on insights from the sociology of valuation and evaluation.     

Digging Up, Dismantling, and Redesigning the Criminal Law

The criminal law raises wonderfully thorny foundational questions. Some of these questions are conceptual: What is a plausible conception of crime? What is a plausible conception of criminal law? Some of these questions are genealogical: What are the historical and genealogical roots of the criminal law in a particular jurisdiction? Other questions are evaluative: What are the political and moral values on which a given conception of criminal law depends? What kind of rational reconstruction, if any, could the criminal law be given? And, finally, still other questions are exploratory and normative: Should parts of existing criminal law be abandoned? What new topics in criminal law theory need to be addressed in our globalised, technologically savvy world? The contributors to Antony Duff and Stuart P. Green’s collection Philosophical Foundations of Criminal Law tackle these questions with zeal and independent spirit. They disagree markedly with each other about what the foundational questions are. And, they disagree about how those questions should be handled. This article charts their disagreements by situating the contributors within two taxonomies. The first groups them according to their approaches to the foundational questions; the second groups them according to their modes of theorising. This double taxonomy provides a useful frame within which to analyse these competing takes on the philosophically foundational work of criminal law theory.     

European criminal law and European identity

This contribution aims to explain how European Criminal Law can be understood as constitutive of European identity. Instead of starting from European identity as a given, it provides a philosophical analysis of the construction of self-identity in relation to criminal law and legal tradition. The argument will be that the self-identity of those that share jurisdiction depends on and nourishes the legal tradition they adhere to and develop, while criminal jurisdiction is of crucial importance in this process of mutual constitution. This analysis will be complemented with a discussion of the integration of the first and the third pillar as aimed for by the Constitutional Treaty (TE), which would bring criminal law under majority rule and European democratic control. Attention will be paid to two ground breaking judgements of the European Court of Justice (ECJ) that seem to boil down to the fact that the Court actually manages to achieve some of the objectives of the CT even if this is not in force. This gives rise to a discussion of how the CT (and related judgements of the ECJ) may transform European criminal law in the Union to EU criminal law of the Union, thus producing an identity of the Union next to the identities prevalent in the Union. The contribution concludes with some normative questions about the kind of European identity we should aim to establish, given the fact that such identity will arise with further integration of criminal law into the first pillar.

Legal Indeterminacy and/as Professional Expertise

One of my concerns here has to do with what I perceive as the possible elision of the normative possibilities of law– and, therefore, the possibility of a more democratically meaningful understanding of justice in the space provided by law. It is an attempt to think seriously about the claim that ``law provides a terrain of contestation on which the powerless can hold the powerful to account by insisting that [the] legitimating rhetoric [of liberal legalism] be turned into action.'     

A note on exogenous changes in incentives for and deterrence of corruption

In this note we amend the model elaborated by Acemoglu and Verdier (2000, The American Economic Review, 90(1),194–211), to examine how agents respond to an exogenous change in incentives. In particular, we apply the theoretical framework to the consequences on the corruption level in Italy of a famous sentence of the Italian Corte di Cassazione in plenary session: in this sentence, no. 500 of 1999, a revolutionary interpretation of the law has increased the area of civil liability for both the public administration and bureaucrats. This is one of the few cases in which the judge substantially legislates in a system of civil law, and the modification in incentives towards or away from corruption comes from an authority that is not part of the game.      

Does procedural fairness matter for drug abusers to stop illicit drug use? Testing the applicability of the process-based model in a Chinese context

ABSTRACT

This study examined the influences of procedural fairness on Chinese drug users’ efforts to stop substance abuse, with a primary goal to test the applicability of the process-based model in the Chinese context. According to Tyler (1990 Tyler, T. (1990). Why people obey the law. New Haven, CT: Yale University Press. [Google Scholar], Why people obey the law. New Haven, CT: Yale University Press), the core theoretical argument underpinning the process-based model is that if citizens consider the police to be fair in using their powers, they will view the police as legitimate and accordingly cooperate with the police and comply with the law. Using data from a sample of 202 Chinese drug users, this study found that procedural fairness has an indirect effect on drug users’ efforts to stop illicit drug use. Specifically, procedural fairness used by the police increased Chinese drug users’ efforts to stop substance abuse through its prior effects on drug users’ perceptions of police trustworthiness. These findings provide some support for the key arguments of the process-based model of regulation, and have important implications for the direction of efforts to encourage desistance-related behavior among substance abusers.     

The Effect of Electoral Institutions on Tort Awards

We argue that partisan elected judges have an incentive to redistributewealth from out-of-state defendants (nonvoters) to in-stateplaintiffs (voters). We first test the hypothesis by using cross-statedata. We find a significant partisan effect after controllingfor differences in injuries, state incomes, poverty levels,selection effects, and other factors. One difference that appearsdifficult to control for is that each state has its own tortlaw. In cases involving citizens of different states, federaljudges decide disputes by using state law. Using these diversity-of-citizenshipcases, we conclude that differences in awards are caused bydifferences in electoral systems, not by differences in statelaw.     

Punitive Damages: A European Criminal Law Approach. State Sanctions and the System of Guarantees

It has traditionally been upheld that punitive damages are incompatible with the Constitutions of civil law countries. This paper sustains the opposing thesis and argues their compatibility, of a general nature, with the basic principles of continental European States, and especially with the principles of legality, proportionality and non bis in idem. This opens the way to the enforcement, in Europe, of sentences delivered in the United States of America. However, despite this starting point, the advisability of exporting the model of punitive damages is rejected. The theme is expanded to argue the equivalent nature of the guarantees and limits of all sanctioning activity of the State and those already established in Criminal Law. This would encompass punitive damages and all types of civil sanctions.     

Undergraduate Education in Legal Psychology

The purpose of this article is to describe ways that legal psychology can be introduced into the undergraduate curriculum. The extent to which undergraduate psychology and law courses are currently a part of the curriculum is described, and a model is proposed for coursework in a Psychology Department that might adequately reflect coverage of the legal area. The role of legal psychology in interdisciplinary programs and Criminal Justice departments is discussed. Sources for teaching aids and curricular materials are described.     

The New Philadelphia Story: The Effects of Severe Punishment for Drunk Driving*

This article documents the experience of a community–New Philadelphia, Ohio–in which a concerned judge attempted to apply severe penalties in order to deter drunk driving. Surveys of drivers on weekend nights were performed in this community and the nearby comparison city of Cambridge in order to determine the extent to which the legal threats were perceived and the extent to which people drank and drove. It was found that the judicial policies were well known in New Philadelphia, but no differences could be discerned in the extent of drinking and driving between the two cities. No significant differences were found in the subsequent records of samples of sentenced drivers in the two cities, the New Philadelphia sample being sentenced to heavy punishments and the Cambridge drivers being sentenced traditionally. The accomplishments and limitations of the experience reported in this study are relevant both to formulating effective countermeasures to drunk driving in specific American communities, and to understanding the role of law–its capabilities and limitations–in addressing social problems more generally.     

Trademarks as a System of Signs: A Semiotic Look at Trademark Law

This essay attempts to explore trademark law and the marks themselves from a semiotic viewpoint to provide a deeper understanding to (trademark) law as a system of signs. Although the language of trademark law may suggest slightly different meanings, for the purpose of this essay “trademark” will refer to an area of law (unless otherwise indicated) and “mark” will refer to the individual sign. The first part of this essay will provide a brief overview of semiotics. Second, it will outline a general look at trademark law as set forth in the Lanham Act. The third section is a semiotic approach to provide a deeper understanding of trademark law. Finally, the essay will analyze a seminal trademark case whilst using semiotics to address legal meaning within the case. Semiotics teaches that no absolute meaning can be found. This essay, then, attempts to secure at least one particular meaning of the Qualitex case and what it means in trademark law today.     

The Road to EU Membership. Enforcing Competition Policy in Hungary: Double Protection and Domestic Developments

The present article is concerned withthe so-called process of harmonisation to theCommunity Law, which is taking place in thecentral eastern European countries, candidatesto join the European Union. Specifically, thisarticle deals with the building of a matureHungarian competition policy, inaccordance with the acquis communautaire,as part of a larger long-term programme ofpro-market decisions concerning privatisationand market openness. On the one hand, theso-called iterated multi-level interaction indifferent arenas between Hungarian institutionsand the Union, structured on path-dependentdynamics, influences the mechanisms and thetiming of harmonisation to the EuropeanUnion. On the other hand, the gradualempowerment of an independent national Office of Economic Competition and theprogress made to the adaptation of policystructures and policy behaviours to theEuropean Union's canons and laws are taken asthe main factors explaining the development ofa clear, predictable, and transparent processof competition law enforcement. Byfollowing a multidisciplinary approach, thisarticle combines an analysis of the meaning ofboth the Hungarian Competition Act and theprovisions on competition contained in the Europe Agreement, alongside a study of theirenforcement experience, revealing a gap betweenthe high consistency of the Hungariandiscipline on competition protection withEuropean Union law and the real enforcement capacity.     

How to compare regulatory regimes

The first 150 words of the full text of this article appear below.

It is the policy of this Journal to only publish material thathas not been published previously. However, an exception hasbeen made with this article as the work from which it has beendrawn has only recently published. This article is taken fromPhilip Wood's Regulation of International Finance, one of aseries of nine works by Philip Wood on the law of practice ofInternational Finance, published by Sweet & Maxwell in 2007.Philip Wood is a member of the Editorial Board of Capital MarketsLaw Journal. Many readers of Capital Markets Law Journal aroundthe world will not have had the chance to read this very topicalarticle which is of exceptional quality and Capital MarketsLaw Journal is very pleased to make it available to the widercapital markets community.                 TheEditors

Key points

• This article examines the criteria which might usefullybe . . . [Full Text of this Article]