Crime clearance rates in Canadian municipalities: A test of Donald Black's theory of law

Donald Black's theory of law has been considered an important theory in the sociology of law. However, while the theory views law as a quantity variable, there has been limited empirical support from quantitative studies. This study offers a quantitative test of Black's theory using data from 579 Canadian municipalities. The results show that the quantity of law, in terms of crime clearance rates, varies positively with stratification, morphology, culture, and organization just as Black's theory has predicted. In addition, population size, population density, the property and violent crime rates, and policing resources also affect the clearance rates. These findings support the general notion that there is more law for certain groups and under certain social conditions. Also, most of the findings are consistent with Black's theory, thus supporting its viability as a sociological theory. In addition, two seemingly contradictory explanations, the resource explanation and the need/dependency explanation, are proposed to interpret the findings. These contradictory and yet complementary explanations perhaps reflect the reality of law in society.     

Provincial laws on the protection of women in China: a partial test of Black's theory

Using data extracted from 29 provincial laws on the protection of women in China promulgated during the 1980s, this study tests Black's (1976) proposition that the quantity of law varies with stratification, morphology, culture, organization, and social control. Analyses yielded little support for Black's propositions except significant direct relationships between morphology and the quantity of five types of provincial laws. The article concludes with a discussion of alternative explanations for the observed findings and the implications of this research for further studies on the development of law.     

加入WTO与我国刑法理论的发展与调整

我国加入WTO后,刑法理论必须作出相应地调整.规范的犯罪概念、规范保护的利益等基本观念应更新;犯罪基本形态将发生变化;刑罚的应用亦应作出适当调整.     

Criminal law theory and criminal code reform

M.A., University of Tartu 1979; Ph.D., All-Union Institute of Criminology (Moscow) 1986; LL.M., Columbia University 1993.     

Applying antitrust law to nonprofit healthcare entities: arguments for a greater attention to detail

This Article begins with an antitrust primer, then analyzes the appropriate application of antitrust principles to nonprofit healthcare providers. In light of the inherent charitable character of nonprofit healthcare providers, the author contends that the government and the courts should accord some deference to nonprofit hospitals when they are seeking approval of mergers. To date, this has not generally been the case, although a few recent court decisions have rested their approval of mergers, in part, upon the nonprofit character of the merging entities. The author, in particular, believes the paradigmatic local nonprofit hospital with a community board is less likely than a for-profit hospital to abuse any market power that it may obtain through a merger; consequently, any such merger should not be analyzed solely under the traditional presumptions of antitrust jurisprudence. Rather, the premerger analysis should involve meaningful consideration of the hospital's charitable character.     

对西方法的构成理论的历史反思

本文首先比较系统地介评了西方学者有关法的构成的论述,然后提出了一种设想,即认为法的构成就是指法这种事物的构成要素和各个要素的排列方式.它包括两个方面,即法的实质构成和形式构成.法的形式构成又包括内在构成和外在构成两个方面.内在构成包括观念、制度和秩序三个层次;外在构成包括习惯、判例、学理法和成文法四种.     

Toward a moral theory of negligence law

This paper explores how the widely acknowledged conception of tort law as corrective justice is to be applied to the law of negligence. Corrective justice is an ordering of transactions between two parties which restores them to an antecedent equality. It is thus incompatible with the comprehensive aggregation of utilitarianism, and it stands in easy harmony with Kantian moral notions. This conception of negligence law excludes both maximizing theories, such as Holmes' and Posner's, and Fried's risk pool, which combines Kantianism with distributive rather than corrective justice. Central to the Kantian approach is the impermissibility of self-preference. The two types of self-preference, self-preference in conception and self-preference in action can respectively account for the objective standard and the Learned Hand test, which are the two most characteristic features of negligence and which are generally (and wrongly) considered to be inescapably aggregative. This corrective justice conception of the negligence standard can then be compared to Epstein's corrective justice conception of strict liability, and arguments can be offered in favour of the superiority of the former.     

Applying game theory to the protection of public funds: Some introductory notes

Regulatory agencies responsible for preventing misuse of public funds do not all operate in the same fashion. Some carefully weigh the costs and benefits associated with various enforcement policies, but others do not. We use game theory to suggest that (1) regulatory agencies actually have a range of enforcement options at their disposal and (2) these enforcement options can have quite different cost-benefit ratios, depending on the resources of the enforcement agency, the nature of its connection to principals, and the strategies adopted by opportunistic actors. We conclude that enforcement organizations must be flexible in order to be effective.     

论法学的人性论传统

法的基础的核心是人性。中国传统法学和西方法学大都是以人性论为基础的。同样,马克思主义法学也有自己的人性论。人性论不是资产阶级的专利。现在自由主义法学所面临的问题无不与人性有关。     

Discourse theory of law in times of populism

Jürgen Habermas's discourse theory of law has shaped debates on what we consider to be legitimate law. This contribution will firstly identify the Zeitgeist in which discourse theory emerged. Secondly, it points out the emancipatory potential of law that discourse theory has helped us to understand, both on a domestic and a transnational level. Thirdly, the paper turns to discuss two recent challenges for the discourse theory of law, namely (a) the realities of social power that undermine and contradict its promises, and (b) the rise of populism, which places the core normative assumptions of discourse theory in doubt.     

依法治国的理论与实践

一、如何理解依法治国 从抽象的角度来理解,依法治国是指通过法律来治理社会和国家,实现法律的全面统治。社会和国家是法律在统治,而不是人在统治。 从法学理论的角度来理解,依法治国是指依靠体现最广大人民群众的意志和利益、合理地配置权利、权力、义务和责任的法来制约国家权力,规范社会主体的活动,调整各种社会关系,管理各项社会事务,从而形成公正、高效、公平、稳定的社会秩序。它的直接要求就是“有法可依、有法必依、执法必严、违法必究”。