税收国家及其法治构造

现代国家源起于现代意义的税收,税所具有的公共对价性、非营利性与国家的民主法治性结合而成税收国家,税收国家必须反映公共目的及国家目的的两个面向。没有税收国家,就不可能有以经济自由为中心的实质法治国家;反之,税收国家须营造一个完善法治的构造。税收国家的法律主义、平等主义和人权主义原则起源于财政民主理念,以此为导引完善财政立宪制度、财政分权制度和相关程序制度,由此为税收国家权力运作设定一个起码的边界。     

Competing Narratives in a Case Biography: A Tale of Two Citadels

This article is the fourth in a series introducing the reader to methods and theories relevant to advancing socio-legal research. They are written for the curious rather than the expert reader and provide illustrations of how the theories, methods, and frameworks have been employed and might be used in your work. This article explores the use of case biography methods for socio-legal studies. Drawing on ‘paths to justice’ studies, network analysis, and legal archaeology, we develop a case study of AC v.Berkshire West Primary Care Trust. We show how the judicial determination of the case suppressed a transgender rights narrative construction of the dispute in favour of one about health care law. Our case biography analysis explores how competing narratives can be traced not only through legal argument and literature, but also through the personnel involved, in ways that are obscured by formal records. Paying attention to biographical features leads to a richer understanding of cases, including the importance of pre- and post-judicial decision-making aspects.     

纳税人意识:公民意识的法律分析

纳税人意识作为公民意识的基础,是一个纳税人与政府双向的全方位概念,是纳税人通过向政府让渡部分财富,要求国家提供公共产品的权利实现和权力服务的思想体系. 它包括建立纳税人权利体系和实施国家财税管理和监控两个方面,展现为纳税人的权利与义务以及政府的权力与义务互动的复杂关系.     

Telling the Difference: Nineteenth-Century Legal Narratives of Racial Taxonomy

Telling the Difference focuses on two legal opinions from the nineteenth century that carefully distinguish between those who should be racially marked as nonwhite and those who should not. In the first instance, a Michigan judge decides the appropriate blood fraction of African-American heritage that would prohibit a free man from voting. In the second, a New Mexico judge rules that the Native Americans of Cochiti Pueblo are not legally Indians, and therefore not entitled to federal protection of their land. The oracle uses these examples to advance two central claims: that we must pay close attention to the narrative logic of racial identification in order to understand the powerful contradictions still at the heart of our conversations about race, and that in doing so we should consider that race has always been multiply constructed in the United States.     

The Role of Narratives in Legal Education

The significance of narrative as the primary form of human communication forms the basis of this paper. Following a brief consideration of the natural inter-relationship between law and narrative, the author goes on to discuss the more specific application of a narrative approach to legal scholarship and legal education. The paper sets out the findings of a practical research project that took as its inspiration James Boyd White’s portrayal of the law student as a creative and imaginative thinker, and Martha Nussbaum’s claim that it is through the power of ‘narrative imagination’ that we gain a broader appreciation and understanding of humanity. It explains how a group of law students participated in ‘the Narrative Research Project’ at the University of Leicester; participating in story-telling seminars and creating their own fictional narratives from appellate case reports. It describes the students’ reaction to the project as heartening in the sense that they became more aware of the significant role that human actors play in legal proceedings, but it also expresses doubts over the extent to which such an approach can, by itself, cultivate humanity in the law school.     

中华法系的百年历史叙事

回顾中国现代法学的世纪历程,中华法系的历史叙事主要在进化论、民族论和法治论三种语境中展开。不同语境中的法史学者,通过将中华法系与其他法系相比较,揭示出了彼此有别的中华法系之历史面貌。在进化论语境中,中华法系因其古.老而落后,丧失了型构现实生活秩序的生命力,需整体性地予以批判和否定。在民族论语境中,中华法系因其系统性、连续性和民族性而独具特色,整理、发掘、重述其历史谱系,既有助于增强民族文化自信力,也为重建“新中华法系”提供了重要的精神前提。在法治论语境中,中华法系以其“治乱之道”和“良法善治”的血缘伦理身份内涵表明,在前现代社会中法律不可能获得型构社会生活秩序的权威地位。法制现代化是不同语境下中华法系之历史叙事的共同追求,中华法系研究的百年学术史,实质上是一部追求法治文明的中国现代精神史。     

民间组织合法性问题的法律学解析——以民间法律援助组织为视角

民间组织之概念和范围应当对应于我国现行立法之规定与行政管理体制。所称谓之合法性问题,是指民间组织的合法律性。民间组织的合法性问题可以从宗旨合法性、活动合法性和组织合法性三个角度加以分析。因法律规范效力等级的差异,对我国民间组织的组织合法性可作不同解读;在法理上,“非法”与“违法”具有不同含义;依现行立法,我国民间组织取得组织合法性存在现实法律障碍,需要探讨解决之策。     

论法与法律意识

法与法律意识的相互作用及其矛盾运动 ,是法存在与发展的基本矛盾之一。法律意识的本原是而且只能是法律现象。法律意识的独立性 ,既相对于法律现象 ,也相对于除法律现象之外的其它现实的社会关系。培养法律意识的目的 ,主要是依靠一种进步的与科学的法律意识作为指导 ,形成正确的法概念 ,制定出一套好的法律规范与原则 ,建立一套好的法律制度 ,保证法律在实际生活中得到最有效的执行与遵守 ,使法的作用得到最有效的发挥。     

Narratives of Force: The Presence of the Writer in International Legal Scholarship

Netherlands International Law Review - In this article I use the notion of ‘plot’ to uncover where in their texts international legal scholars are ‘present’, directing...     

Under the Law: Legal Consciousness and Radical Environmental Activism

A growing body of sociolegal scholarship focuses the study of law away from formal texts and legal institutions and toward the experiences and perceptions of “everyday” citizens. This study introduces seventeen “radical” environmentalists who engage a repertoire of tactics that includes some actions that involve relatively severe forms of illegality. This research seeks to investigate the role of civil disobedience and lawbreaking within the radical environmental movement and the corresponding legal consciousness of movement actors. Utilizing ethnographic fieldwork and content analysis, this analysis suggests that Ewick and Silbey's (1998 ) three‐tiered model of legal consciousness is an operative starting point, but could be enhanced through theoretical expansion. This study proposes a new category of legal consciousness—Under the Law—that views the law as the protector and defender of a social order that is fundamentally illegitimate. Under the Law is qualitatively different from existing conceptualizations of legal consciousness and reaffirms the mutually constitutive nature of law and society.     

Everyone Knows the Game: Legal Consciousness in the Hawaiian Cockfight

Past legal consciousness research has revealed a great deal about what individuals think and do with regard to law, but less attention has been paid to the social processes that underpin these attitudes, beliefs, and actions. This article focuses particularly on a “second‐order” layer of legal consciousness: people's perceptions about how others understand the law. Ethnographic observations and in‐depth interviews with cockfighters in rural Hawaii reveal how law enforcement practices not only affect cockfighting rituals, but are embedded within them. Police practices and informal rules work in concert to shape fighters' second‐order beliefs. These beliefs have implications for participants' understanding of central concepts, including order, disorder, and illegality. Examining legal consciousness from a second‐order perspective also underscores that notions of legitimacy are constantly created and recreated. Recognizing legitimacy's inherently relational nature helps us understand how experiences of law are synthesized into beliefs—for example, when an unusual police action directed toward a subgroup of fighters compromised the law's legitimacy for them. Foregrounding the relational nature of legal consciousness offers scholars a means to better understand and operationalize the dynamic nature of human relationships to law.     

The Embedded Nature of Rural Legal Services: Sustaining Service Provision in Wales

There is a considerable amount of literature on embeddedness as part of sociological theory of economic action. Cultural and structural embeddedness often work together to shape the framework of economic relations, but, in an analysis of rural solicitors, we find unevenness between cultural and structural embeddedness. There are strong traits of the former, through a sense of place and belonging, but much less evidence of the latter with the structural relationships appearing relatively weak and underdeveloped. In a discussion supported by empirical data from a recent survey of rural legal practices in Wales, a number of causes are identified. The paper concludes that trends towards increasingly specialized rather than generalized legal service provision, set alongside the increasingly differentiated nature of rural space, suggest that the longer-term sustainability of rural legal practices may require both greater investment at the level of structural embeddedness alongside continuing reinvestment at the cultural level.     

和谐社会构建过程中的法制发展

法理学的学术研究总是和社会实践、主导性社会意识形态的发展有着直接的关联.2006年的法理学研究又取得了新的进步,这是对于社会发展的理论回应.