Civil Liberties and the Korean War

This article addresses the unsuccessful attempts to suppress free speech during the Korean War, and in particular explains the attempts to silence three reporters of alleged atrocities by United Nations forces. In the absence of carefully targeted legislation, the three individuals – Alan Winnington (a journalist), Monica Felton (a women's movement activist) and Jack Gaster (a solicitor) ‐ were threatened with or investigated for prosecution for treason or sedition, and Winnington was unable to renew his passport until 1968. Drawing heavily on archival sources (including MI5 files, which unusually fail to redact the identity of one of the lawyers who was reporting to Special Branch about Gaster's activities), the article explores the threat to civil liberties from the administrative as well as the legislative and the judicial power of the state. The article concludes by drawing contemporary parallels, and highlighting the continuing relevance of the writings of Winnington, Felton and Gaster.     

German Constitutional Law: The Protection of Civil Liberties

Netherlands International Law Review -     

“Friends as Foes: The Amicus Curiae Participation and Effectiveness of the American Civil Liberties Union and Americans for Effective Law Enforcement in Criminal Cases, 1969–1982”*

Scholars have long recognized that interest groups realize the importance of the courts as policymakers and as vehicles of social and political change. We examined the amicus curiae participation of the American Civil Liberties Union and Americans for Effective Law Enforcement in criminal cases before the Burger Court from 1969–1982. We found that AELE, a conservative law-enforcement organization, has been the most successful interest group as participant as amid. Moreover, we found that criminal law is yet another area of law in which interest groups are using the Supreme Court to achieve and protect their policy interests.     

Rethinking Agamben: Ontology and the Coming Politics

Giorgio Agamben’s work has often been criticised for being bleak, pessimistic, and of little use for thinking about political action. This image of Agamben has, however, resulted from a narrow reading of the Homo Sacer project that isolates it from his early thought on language and ontology. This essay draws on new works by Mathew Abbott and Jessica Whyte to explore the ways that Agamben attempts to think the conditions for overcoming the political nihilism of the present. It argues that the two works diverge on the question of where Agamben locates the potential for political transformation, and that this results from their differing approaches to the relationship between ontology and politics.     

对民法调整对象法定化的政治社会学检讨——以学术与政治的关系为中心

一、法律现代化进程中的中国民法当前的中国社会正处于由前现代社会向现代社会的转型期。研究转型期的法律现代化进程,必须结合转型期的社会背景寻找合适的研究方法。这不论对从微观层面深化当代中国法律史的研究,还是对从宏观层面深化对中国法学的研究,都具有重要的理论意义和     

The Politics of a European Civil Code

Abstract:  Last year the European Commission published its Action Plan on European contract law. That plan forms an important step towards a European Civil Code. In its Plan, the Commission tries to depoliticise the codification process by asking a group of academic experts to prepare what it calls a 'common frame of reference'. This paper argues that drafting a European Civil Code involves making many choices that are essentially political. It further argues that the technocratic approach which the Commission has adopted in the Action Plan effectively excludes most stakeholders from having their say during the stage when the real choices are made. Therefore, before the drafting of the CFR/ECC starts, the Commission should submit a list of policy questions regarding the main issues of European private law to the European Parliament and the other stakeholders. Such an alternative procedure would repoliticise the process. It would increase the democratic basis for a European Civil Code and thus its legitimacy.     

Rediscovering Civil Society: The European Union and the White Paper on Governance

The concept of 'civil society' has been rediscovered in contemporary discourses concerning the relationship between democracy and governance. This paper analyses this rediscovery in the more specific context of the European Commission's 2001 White Paper on European Governance. However, processes of transnationalisation, governmentalisation and autonomisation may compromise much of the potential of 'European civil society' as an intermediating sphere of social action. By reinforcing these processes, the White Paper undermines the normative claims made for a civil society premised upon the voluntary nature of its associative forms and its distinctive open, communicative and deliberative rationality.     

The Principles of Civil Procedure of the USSR and the Union Republics

The Seventh Session of the USSR Supreme Soviet (Fourth Convocation), held in December, 1961, adopted the Principles of Civil Procedure of the USSR and the Union Republics. This will indubitably play a major role in the further reinforcement of legality under socialism in the area of relationships under civil law, and will assure the realization of justice in civil cases.     

理论与实践:美国民事诉讼法教科书的典范——评弗兰德泰尔等的著作《民事诉讼法》

弗兰德泰尔等著的民事诉讼法一书,具有严谨的理论体系,融学术理论与诉讼实践为一体,内容丰富,资料翔实,结构新颖,对研究美国民事诉讼法,以及重新认识和借鉴判例教学法等,都具有重大参考价值。     

State Courts, the U.S. Supreme Court, and the Protection of Civil Liberties

Advocates of federalism, both in the United States and elsewhere, often cite the potential for enhanced protection of individual civil liberties as an emerging rationale for a federal system dividing governmental responsibilities between central and regional governments and central and regional judiciaries. Echoing this, some judicial officials and scholars, confronting an increasingly conservative U.S. Supreme Court, have called for state supreme courts to use the state constitutional grounds to preserve and increase the protections of the Bill of Rights. Using event count analysis, we examine state search-and-seizure cases for 1981 to 1993 to ascertain under what circumstances state courts would use this opportunity to eliminate Supreme Court review. We find that the relative ideological position of the state supreme courts and the U.S. Supreme Court often prevents, or does away with the need for, liberal courts to use the adequate and independent state grounds doctrine to expand the rights of criminal defendants and that state supreme court justices react more predictably in the assertion of constitutional protection law than the general consensus suggests.     

西方民法史上的"骄子"--论《法国民法典》承上启下的历史地位

19世纪初叶,西方民法史上诞生了一位时代"骄子"--<法国民法典>.这部法典不仅是启蒙运动中自然法思想的产儿和法国大革命直接孕育的果实,也是资本主义社会民法的开篇之作,有着不同寻常的历史地位和历史意义.     

A European Constitution for Citizens: Reflections on the Rethinking of Union and Community Law

Whilst the European Union or Community is not a state and does not possess a political constitution in the sense of a series of irrevocable norms existing prior to and above Community or Union law, the evolution of the European legal system might nonetheless be regarded as a fundamental constitutional process. In this light, primary and secondary European law, together with the jurisprudence of the ECJ, might be said to be subjectivising certain specifically European principles thus contributing to the legal creation of sometimes novel rights for European Citizens. In a legal process similar to that seen within 19th Century Germany, European law is seeking a compensate for an incomplete political constitution through the development of a – second best – European Charter for Citizens.     

The Idiom of Legalism in Bar Politics: Lawyers, McCarthyism, and the Civil Rights Era

This paper considers the political role of the organized bar from three perspectives: the historical question of the stance taken by bar associations during the major civil rights debates of the post-World War II period; the sociological question of the extent to which legal associations can act collectively on highly contentious political issues; and the legal question concerning the implications of legal formalism for the politics of the bar. Contrary to the belief that legalism is an inherently conservative means of justifying professional inaction on fundamental issues, the paper argues that in fact legalism may well be the most important basis of intra-professional consensus on those issues as well as the most powerful means by which the profession can influence state and national governments. Legalism can be understood as a common professional idiom which allows mobilization on divisive issues. It can be used in support of both liberal and conservative causes. In this sense, within certain limits, legalism is neutral–an expedient which enables the profession to act politically in circumstances which otherwise would effectively immobilize its collegial associations.