Beyond Consensus: Law, Disagreement and Democracy

Nowadays democratic liberal societies face a rising challenge in terms of fragmentation and erosion of shared values and ethical pluralism. Democracy is not anymore grounded in the possibility of a common understanding and interpretation of the same values. Neverthless, legal and political philosophy continue to focus on how to reach consensus, especially through monist, objectualist, contractualist, discursive and deliberative approaches, rather than openly affording the issue of disagreement. Far from being just a disruptive force, disagreement and conflict are matters of fact that no reflection on democracy can underevaluate. They are the major issues through which to look at the intersection of law, politics and morals. The inclusion of dissent is a powerful tool for moral recognition of different understandings of justice. That is where legal procedures become crucial. Law is a fundamental element in the building of a democracy. But it is also particularly exposed to disagreement. Language indeterminacy, dogmatic concepts and value pluralism constitute the main elements that lead to alternative and conflicting interpretations of law in a democratic framework. Major legal progress in the past has come from different understandings of the same legal materials. In this article I argue that respect for disagreement should be a moral principle in democracy and that the role of legal disagreement is essential to understand the evolution and the future directions of democracy as the government of a political community. To do so, a link between respect for disagreement and legal interpretation and argumentation must be established in order to make room for reason and avoid extreme skepticism on the contribution of law to the enforcement of democracy.     

Beyond Otonomy, or Beyond the Law of Law's Ear

Can the relationship between law and literature be thought in terms of conversation? Can the law still ‘hear’ the voice of a writing that has come before it, yet outside the frame of the ‘hearing’ and the rules of ‘standing’? And when literature speaks, what does it say? Perhaps what the law has always known …     

Human Rights,Linguistics and the Law: The UK and Beyond

This article examines mediarepresentation of cases decided in respect ofthe United Kingdom Human Rights Acts (1998).These representations suggest that only somepeople are deserving of human rights. Further,a distinction between legal human rights andhuman rights is made because of this problem ofaccess. Indeed, before one can be clear abouthow to protect human rights in a legal context,one has to be clear about what human rights areuniversally and uncontroversially.     

Jurilinguistics: Ways Forward Beyond Law,Translation, and Discourse

International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique - This is the guest editors’ introductory paper to the special issue “Situating...     

Beyond Discretion: Prosecution, the Logic of Sovereignty, and the Limits of Law

Today it is widely recognized in both academic literature and the mainstream media that prosecutors have substantial discretion. Yet prosecutorial decisions involve, in our view, something more than a straightforward exercise of discretion. In this article we move from the language of discretion to that of sovereignty to describe prosecutorial power. In so doing we want to move from the language of administration to the language of power. Focusing on the decision not to prosecute, we argue that prosecutorial decisions participate in, and exemplify, the logic of sovereignty and its complex relationship to legality.
By drawing on Carl Schmitt and Giorgio Agamben, we seek to recast prosecutorial decision making as something that allows prosecutors to grant exemptions from the reach of valid law. The sovereign power of prosecutors is most vividly on display when they decline to bring charges where there is a legally sufficient basis for doing so. By exercising what is, in most jurisdictions, an all but unreviewable power, they can and do exempt individuals from the reach of valid law.     

跨国地下水利用与保护的法律探析

跨国地下水是国际水域的重要组成部分。跨国地下水本身的特点需要制定适合其特性的专门法规。从20世纪20年代到现在,逐渐形成了一系列跨国地下水开发利用的条约和规则,这些条约和规则对跨国地下水的开发利用和保护具有一定的积极意义。但是,由于在确定地下水的法律制度方面,有一系列理论问题尚未受到重视,因此,关于跨国地下水现有的立法存在一定缺陷。制定公平和合理利用跨国地下水资源的双边和多边条约、重视跨国地下水与地表水的整体性、建立专门的跨国地下水管理组织规范等是完善跨国地下水立法的重要内容。     

European Law and International Regimes: The Features of Law Beyond the Nation State

Different forms of law are perceived of as possessing differing degrees of legal quality. A quality continuum suggests itself, running from 'high quality' national law, through to 'lesser quality' European law and to 'low quality' international law. This article seeks to explain the perceived differences in the quality of these laws with reference to legal theoretical perceptions of what it is that constitutes the law's quality. It argues that only a theory of law which identifies the core of the law's integrity as lying in its ability to act as a fulcrum between spheres of social and public discourse and the exercise of power can fully explain the divergence in legal quality between national, European and international law. With specific regard to the quality of European law, it concludes by arguing that it is weakened by its relative lack of social internalisation—in comparison with a higher degree of legal and political internalisation—within the European public.     

技术标准、知识产权与反垄断法

技术标准一般是指企业为一定产品生产或为进入市场而在涉及产品质量或者安全等方面须达到的一定技术要求。技术标准一般是强制性的要求,即在产品或者     

Talking Law in Times of Reform: Paradoxes of Legal Entitlement in Cameroon

Based on ethnographic fieldwork carried out between 2003 and 2005, this article examines how legality is constructed in present‐day Adamaoua Province, Cameroon. Focusing on an instance of a process locally referred to as la concertation, I analyze how state officials and cattle traders gather to discuss the practical fate of law. As a heightened moment of suspended enforcement, la concertation is productive for both officials, who work out the limits of their respective spheres of authority and imagine a trade based on business norms and practices that severely limit the scope of regulatory action, and traders, who manage to stave off the increased scrutiny that income tax law presupposes, while asserting their concern for the integrity and consistency of the law.     

超越主客观解释论:刑法解释标准研究

合理解释刑法是正确适用刑法的前提,因而探寻解释合理与否的标准构成刑法解释理论的核心。传统刑法解释理论的解释标准,无论是主观解释论的立法原意标准还是客观解释论的客观意思标准,都存在诸多缺陷,因此,必须根据以人为本的理念,从理解人本身的视角确立刑法解释的标准。在以人为本的理念下,刑法解释主体是具有多元价值观的解释者构成的解释共同体,刑法解释的标准是多元互动解释共同体通过对话协商获得的共识。制度化的对话协商可以通过求同存异的办法防止实质性价值冲突的激化,成为刑法解释及适用的合法性保障。     

Making the Law of the Sea: A Study in the Development of International Law

Netherlands International Law Review -     

Beyond Peirce: The New Science of Semiotics and the Semiotics of Law

This paper shows how Peirce's semeiotic could be turned into a powerful science. The New Science of Semiotics provides not only a new paradigm and an empirical justification for all these applications, but also a rational and systematic procedure for carrying them out as well. Thus the New Science of Semiotics transforms the philosophy of law into the science of legal scholarship, the discipline that I call jurisology.

控制废物越境转移和处置的刑法对策

近年来,大量废物从发达国家向发展中国家转移,使转移目的地国家的环境安全受到威胁。国际社会对此问题也予以充分关注,并制定了相关国际公约来约束废物的越境转移。我国作为公约缔约国,为了履行国际义务,预防和惩治这种国际犯罪行为,在1997年刑法中增设了废物犯罪,这对于控制污染转移具有重大意义。但是,不管是国际公约还是国内废物犯罪立法对于控制废物的越境转移,都还存在一定的不足。