论法律概念的实践逻辑——兼论案例教学法的理论基础

法律概念与自然科学概念至少存在两个方面区别:法律概念具有实践性,自然科学概念具有理论性;大部分法律概念具有类同性,大部分自然科学概念具有相同性。实践性构成了法律概念的本体论特征,类同性构成了法律概念的逻辑特征。因此,法律概念具有自身的实践逻辑。兰戴尔最先提倡的案例教学法是建立在一种有缺陷的法律科学构想基础上的。法律概念的实践逻辑构成案例教学法的理论基础。     

About the Meaning of the Legal Aspect of Practical Semantics in Estonian Legal Order

This article is aimed at regarding, from the author’s viewpoint, one possible jurisprudential theory for rational understanding of legal order – the structuring theory of law. It is very important that cognition of a legal order should be based on the rules which could be designated as “laws of jurisprudence”. Naturally, this does not mean legislation within the concept of objective law. Rather, these laws can be referred to as certain regularities, ignorance of which would, however, either impossibly or substantially complicate the legal process of decision-making, both in law-making (as the so-called decisional function is contained in law itself¹) or the practical legal process of making decisions (the application of law). In recent years, a conception involving cooperation between linguists and jurists has emerged in the discussion of jurisprudential methodology. This constitutes an interdisciplinary approach to motivation of legal decision-making and involves, on the one hand, “practical semantics” and researchers thereof,² and on the other hand, representatives of the so-called structuring theory of law.³ In specialist literature, the structuring theory of law has also been referred to as the Müller Schoo1.⁴ The role of language and linguistic arguments in the discussion and practice of legal working methods serves as a connective principle in such interdisciplinary approach (co-operation).     

Jhering's Philosophy of Authority

This article offers a critical reassessment of the jurisprudenceof Rudolf von Jhering. During the 20th century, Anglo-Americanlegal philosophers who drew inspiration from Jhering's workusually lauded him either as a German forerunner to Americanlegal realism or as an early proponent of a jurisprudence ofinterests. These representations of his work do not do justiceto Jhering's jurisprudential project. This study demonstratesthat he sought to explain how legal systems originate and howthey maintain authority. It is shown that his explanation oflegal authority depends not only upon familiar jurisprudentialnotions such as reciprocity and positional duty, but also uponthe concept of Rechtsgefühl—namely, the idea thatauthority is conditioned by citizens’ feelings of whatis right or just. Jhering, it is demonstrated, believed thatthe authority of a legal system depends very much on its abilityto negotiate and accommodate struggles based upon feelings ofright—struggles between citizens, between citizens andState, and between States. It is also argued that the mannerin which Jhering relies on the idea of Rechtsgefühl underminesthe received wisdom that he was an interest theorist.     

行政指导的困境及其解决路径探析

在现代市场经济和民主政治的不断发展过程中,行政指导行为应运而生并发挥了积极的现实作用,逐渐成为现代政府施政的中心。但在行政指导的实务中它的某些固有缺陷和负面效应也不时暴露出来,有些甚至直接影响到行政指导积极意义的进一步显现。本文试图从变革政府执政理念和法律规制两个方面指出了解决行政指导面临困境的路径,这对于发掘和维护行政机关履行职责的积极性,保护行政相对人的合法利益将具有重大的理论价值和实践意义。     

Internal and external method in the study of law

Legal theory and scholarship are currently characterized by a division between traditional, doctrinal methods and approaches derived from extra-legal disciplines. This paper proposes a different though related distinction between two methods of understanding law and interpreting authoritative legal texts.Internal method reflects the viewpoint of the participant in a legal system and traditional doctrinal study; it is practical and decision-oriented. Limitations on the range of arguments and interpretations employed are accepted in order to render its results serviceable for practical tasks.The purposes of external method are cognitive and theoretical; it is oriented toward a comprehensive philosophical and scientific rationality. Its premises and results are therefore not restricted by received professional opinion or social or institutional restraints, and may reflect the conceptual resources of extra-legal disciplines.The paper discusses the antecedents of these methods, describes the structure of each and relations between them, and suggests that the criterion of internal method is practical effectiveness, that of external method truth or falsity.     

Power Politics and the Rule of Law: Shakespeare's First Historical Tetralogy and Law's 'Foundations'

Legal scholars’ interest in Shakespeare has often focusedon conventional legal rules and procedures, such as those ofThe Merchant of Venice or Measure for Measure. Those plays certainlyreveal systemic injustice, but within stable, prosperous societies,which enjoy a generally well-functioning legal order. In contrast,Shakespeare's first historical tetralogy explores the conditionsfor the very possibility of a legal system, in terms not unlikethose described by Hobbes a half-century later. The first tetralogy'sdeeply collapsed, quasi-anarchic society lacks any functioninglegal regime. Its power politics are not, as in many of Shakespeare'sother plays, merely latent, lurking beneath the patina of anotherwise functioning legal order. They pervade all of society.Dissenting from a long critical tradition, this article suggeststhat the figure of Henry VI does not merely represent antiquatedmedievalism or inept rule. Through Henry's constant recourseto legal process, arbitration and anti-militarism, the firsttetralogy goes beyond questions about how to establish a functioninglegal order. It examines the possibility, and meaning, of ajust one.     

有组织犯罪概念二元论

有组织犯罪的理论研究从其一发端便面临着一种巨大的尴尬──概念确立的艰难。本文通过对当前这一领域研究成果的总结与清理,凸现了其现时的理论困境,并在此基础上提出了可能的突破路径,即有组织犯罪概念应从刑法学和犯罪学两个层面上予以二元解说。文章还进一步对二元论的立论基础、理论功能和基本内涵进行了详尽的分析。     

当代中国主流法律观及其深度融合——兼及法律方法论的实践功能

从现象学角度来看,法律显现自身的活动与过程具有一种"构成"的性质。在法律实践中,各种政治因素、社会因素、历史文化因素不断获得规范性整合而使法律获得旺盛的生命力。通过梳理和分析当代中国主流法律观及其深度融合之可能,可以发现更为适合中国法治路径的法律观应当是来自基于现象学的规范法学,而法律方法论则是实践法治必不可少的技艺。     

法制现代化问题的规范性

法制现代化问题为人们关注日久。在这一问题的规范性维度,即所谓法制现代化的进步性和普世性论题上,至今争议频仍。主流社会理论与后现代主义、文化多元主义各据一方,后二者依据极端相对主义的形上观点力图抵制法制现代化论题的规范性维度之扩张。通过检视争论各方的若干思想谱系和理据,粗略解析共通的理论争点:即人性论预设之后,依人性的同等和平等这一形式化理念为考量基准,在当今世界多元文化的总体趋势下,法制现代化问题的规范性要求是可以证成的。     

Discourses of Division: Law, Politics and the ICJ Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

This article undertakes a critical reading of the argumentsused at the bench and the bar in the 2004 ICJ Wall advisoryopinion. The Wall case included an unprecedented number of Stateand non-State participants and it is therefore a valuable sitein which to explore the parameters and limits of legal speech.What argumentative strategies were employed at the Peace Palace?How did different participants present the relationship betweenlaw and politics? In particular, because the example of Palestinecan be seen as a challenge to the post-colonial order, how didThird World States employ the language of international lawin support of Palestinian self-determination? It is shown thatalthough international legal speech is highly restrictive, manyThird World States are willing to challenge its boundaries througha deep-set faith in the dividends of legal argumentation.     

环境法调整对象的应然与实然

环境法的调整对象是环境法学的一个基础性理论问题。环境伦理并不能为环境法调整“人与自然”关系提供充足的论据 ,而且在现实法律形态下也存在诸多障碍。学界对环境法调整对象的分歧 ,根本上渊源于对“法”概念的不同认识。建构可持续发展思想指导下的环境法律体系是更为务实的选择     

Restitution in America: Why the US Refuses to Join the Global Restitution Party

In the past generation, restitution law has emerged as a globalphenomenon. From its Oxbridge home, restitution migrated tothe rest of the Commonwealth, and ongoing Europeanization projectshave brought the common law of restitution into contact withthe Romanist concept of unjust enrichment, further internationalizingthis movement. In contrast, in the United States, scholarlyinterest in restitution, in terms of books, articles, treatises,symposia and courses on restitution, is meager. Similarly, whilerestitution, equity and tracing cases receive considerable treatmentat the highest levels of the English judiciary, US courts seemuninterested in these issues, rarely producing the theory-ladenopinions that have become quite common in the House of Lords.The situation is particularly curious because restitution isgenerally thought to be the invention of late nineteenth-centuryAmerican scholars. This article explains this divergence. Iargue that the Commonwealth restitution discourse is largelya product of pre- or anti-realist legal thought which generatesscepticism within the American academic-legal establishment.The article identifies the two dominant camps in American privatelaw thought—left-leaning redistributionalists and thecentre-right legal economists—and shows that neither hasany use for the Commonwealth's discourse. I conclude by analysingthe emerging drafts of the Restatement of Restitution and forecastthe future of American restitution law.     

The dangers of constitutional identity

This article purports to expose the dangers of the concept of constitutional identity – a doctrine shaped by apex state courts to shield areas of the national legal systems from the influence of European law. First, the article overviews the use of the concept of constitutional identity in the case law of national and supranational courts, mapping the growing expansion of this doctrine. Second, the article seeks to reconstruct the genealogy of the concept of constitutional identity, tracing its legal origins. Third, the article advances a normative criticism of the concept of constitutional identity, explaining how the doctrine suffers from an incurable lack of determinacy, which inevitably results in arbitrariness in its use. Moreover, the article points out how the practical use of a defensive concept such as constitutional identity is poised to weaken, if not undermine tout court, the process of European integration.     

Convergence and conflict perspectives in Scandinavian studies of the legal profession

This article focuses on classic Scandinavian studies of the legal profession. These classic studies, which followed World War II and the development of the Scandinavian welfare states, focused on national developments in the legal profession and its relevance to the development of the states and the markets. The studies are divided into convergence perspectives with Aubert's studies dominating on the one hand, and conflict perspectives with Mathiesen's studies dominating on the other. This article examines their similarities and differences in theoretical backgrounds, methodology and empirical data. It demonstrates how the two research traditions, despite their different theoretical perspectives, build their research on comparatively the same kind of empirical data and methodology and how they reach some of the same conclusions.     

法律权威与行动理由——基于拉兹实践哲学进路的考察

权威可以分为理论权威与实践权威、事实权威与合法权威,拉兹讨论的是合法的实践权威。权力与承认这两个概念都无法有效地界定合法的实践权威,在一定意义上可以说,拉兹的实践权威理论批判性地借鉴了权力论的分析模式并用行动理由作为基本分析概念。法律主张合法权威是法律的一个本质特征,法律规范也是一种强制性的行动理由,即一种内容独立的排他性理由。     

From the Autopoiesis to the Allopoiesis of Law

This article discusses the empirical limits of the concept of autopoiesis of law in world society today. The argument is based principally on observation of the problems of reproduction of the legal system in 'peripheral countries'. The central thesis of the article is that, in the countries of 'peripheral modernity' the reproduction of the legal system is blocked by a wide variety of social factors, in such a way that one can speak more of the allopoiesis than the autopoiesis of law. Beginning with a biological concept, the article considers the sociological concept of autopoiesis, and then analyzes the concept of autopoiesis of law. Based on this theoretical parameter, the argument about the allopoiesis of law in the 'peripheral countries' is presented. Finally, the article returns to the central theme of the allopoiesis of law in 'peripheral countries' and points to the indications of a normative concept of autopoiesis of law in the theories of Niklas Luhmann and Gunther Teubner.     

Judicial Reform and Rationalization: The Diffusion of Court Reform Policies Among the American States

Explaining the diffusion of judicial reform policies among the American states is an elusive task. Are such policies simply part of the larger policy process revealed in the comparative state policy literature? Or b court reform a policy arena unto itself, responding to factors uniquely legal or professional in nature? Our inquiry begins with Max Weber's sociology of law from which we adopt his concept of rationalization as a schema of policy development. According to Weber, the “rationalization” of legal institutions would accompany the advancement of capitalism in modernizing nations. Thus, we might expect specific judicial reform policies expressly aimed at rationalizing the structure and process of state court systems to be closely associated with each other and with commonly accepted indicators of economic development among the states. As part of our investigation, we relate court reforms to broader policy innovations among the states, drawing on earlier “diffusion of innovations” research. Our data indicate a strong connection between judicial reform and more general patterns of innovation diffusion among the states, but provide only modest support for Weber's assertions about the rationalization of legal systems under advancing capitalism. Three of the selected reforms cluster together and are largely explainable by indicators of economic development. Two other reforms do not fit this pattern, and their “behavior” requires additional discussion and research. Thus, the diffusion of judicial reform policy is partly accounted for by factors found in explanations of general policy innovations across states, but other, as yet unidentified, factors apparently influence certain aspects of judicial reform. The connection between Max Weber's legal sociology and policy development among the American states might at first blush seem remote or tenuous. However, this article attempts to use Weber's insights into modern legal systems to (1) examine a specific area of state policy making–judicial reform–and (2) establish a connection between policy development in the court reform area and the larger literature on general policy innovation in the American states. This inquiry is inspired by the lack of theoretical integration apparent in the literature on court reform, on the one hand, and the absence of empirical analyses connecting court reform data with “diffusion of innovation” policy studies, on the other.     

论隐私权制度的本土化建构

随着依法治国的深入开展和人权保护观念的深入人心,我国法律制度中的一些弊端日益明显化,革新法制的愿望也日趋强烈,而隐私权就是其中的一个法律问题。本文从法理学的视角就隐私权的法律属性进行阐述并对其在目前条件下如何实现隐私权制度本土化进行探析。     

Relational Embeddedness and Socially Motivated Case Screening in the Practice of Law in Rural China

Based on an ethnographic study conducted in rural China, this article demonstrates that relational embeddedness—that is, concrete and durable relationships among law practitioners, clients, adversaries, and the surrounding communities—holds the key to our understandings of the legal profession's case screening. Over the past decade, legal services in rural China have been commodified significantly. Despite that, relationships with extended families, community members, and local political elites have continued to shape law practitioners’ professional decision‐making. By carefully scrutinizing multiplex relationships involved in legal services, law practitioners seek to meet the practical needs of their personal life, and more importantly, to uphold moral obligations derived from communal life. Seen in this light, the practice of law is an integral part of a moral economy in the countryside. Rather than giving rise to a more progressive form of services, the legal profession's participation in this moral economy often reinforces existing power structures in Chinese society. By introducing the concept of relational embeddedness into sociolegal research, this study unpacks the complex consequences of the recent legal reforms in China; it also enriches our theoretical understandings of related concepts, such as social capital, networking, and guanxi in the practice of law.     

法官解释确定性的内外视角

法官解释的确定性难题，是指法官在个案中对法律的应用性解释是否存在一个唯一的正确答案。要实现法律持续而稳定地指导人们的生活，在司法实践中必然要求获得法官解释的唯一正确答案。学界往往从控制法官主观思考进程的内在视角寻求确定性，但内在视角存在不可弥补的缺陷，必须转向程序的“外在”视角来解决法官解释的确定性难题。