Juridification: Disrupting the Relationship between Law and Politics?

The article addresses some possible implications of juridification in the society. The concept of juridification is unclear, and the empirical knowledge of the social implications of various processes of juridification is weak. We argue that clear‐cut conclusions about the implications of such processes cannot be drawn. To address questions of implications of juridification processes, we focus on the relationship between law and politics. An analytical framework for the analysis of juridification processes is introduced to manage the vast implications of these processes. The discussion indicates complexity and contradictory outcomes of juridification processes. We conclude that to understand the vast complexity of the different kinds of juridification processes, we need more empirical studies from a range of academic fields, including law, economics and political sciences, and that researchers in these fields need to take a step back to get a more satisfactory analytical point of departure for such studies.     

Juridification and the Construction of Social Citizenship

The article elaborates on the legal construction of citizenship within the welfare state. The concept of citizenship is constructed from the perspective of rights and is closely related to the legal development of various fields of law. Juridification processes in the welfare state directly concern the construction of social citizenship and indirectly affect both political and civil citizenship. Concentrating on juridification within the framework of the welfare state implies that the development of welfare law is the focal point of the article. To understand the implications of juridification processes in the welfare state, we concentrate on the relationship between social citizenship, on one hand, and political and civil citizenship, on the other, and consider the implications of the legal and institutional construction of social citizenship. Social rights may confine the scope of political and civil citizenship and at the same time enhance individual freedom and the extent of political action.     

Dimensions of racial segregation, hypersegregation, and Black homicide rates

Prior research assessing the association between racial residential segregation and Black urban homicides has not considered each of the five dimensions of segregation or the phenomenon of hypersegregation. In this study, indicators of each of the five dimensions of segregation, as well as measures of severe segregation and hypersegregation were considered, in order to assess Black homicide rates across 201 metropolitan statistical areas. Four of the five indicators of segregation were found to predict the dependent variable, although some evidence of an empirical overlap between dimensions was uncovered. Additionally, two indicators of severe segregation (exposure and centralization dimensions) and two measures of hypersegregation (i.e., a dummy variable and a count of the number of dimensions of severe segregation that exist in a given metro area) were found to be associated with Black homicides. The findings were interpreted as supporting Massey and Denton's ideas about the consequences of hypersegregation and Wilson's notion of concentrated disadvantage as explanations for Black urban homicide rates.     

United Kingdom Military Law: Autonomy, Civilianisation, Juridification

This paper argues that military law has undergone a long-term process of change. Previously an autonomous legal system with little civilian input at the administrative, judicial and policy-making levels, military law became subject to a consensual policy of civilianisation from the early 1960s, reflected primarily in the adoption of civilian criminal law norms by the military justice system. More recently there has emerged the juridification of significant areas of military relations in respect to discipline and certain other terms of service which hitherto have not been subject to externally imposed legal regulation. Explanations for the shifts from autonomy, through civilianisation, and then to juridification, ranging from political and social developments to new human rights and equal opportunities discourses, are offered for such changes.     

The Hermeneutic of Suspicion in Contemporary American Legal Thought

This article explores the ‘hermeneutic of suspicion’ that seems to drive contemporary American jurists to interpret their opponents’ arguments to be ideologically motivated wrong answers to legal questions. The first part situates the hermeneutic in the history of the critique of legal reasoning, in public and private law, particularly the critique that claims that ‘no right answer is possible’ to many high-stakes questions of legal interpretation. The second part locates the hermeneutic in the long running processes of juridification, judicialization and constitutionalization that characterize law in modern society. The last part interprets the hermeneutic as ‘projective identification’, in the sense of Freud’s analysis of jealousy, with the jurist solving the problem of role conflict by firmly externalizing the inevitable ideological element in doing justice onto his opponent while preserving the legalist element in doing justice for himself.     

Tilting at Windmills: the Defamation Act 2013

In April 2013, the Defamation Act was passed, the culmination of a four‐year political campaign. The legislation is intended to ameliorate the ‘chilling effect’ of libel law on scientists, online commentators, NGOs, and others. This paper considers the main changes wrought: reform of the main common law defences, changes relevant to scientific discourse and online speech, and revisions that will impact on process. It identifies areas where there will be problems of interpretation for courts, and suggests that the Act will fail to provide clarity for publishers keen to assess the legality of their actions. The paper also contends that more attention should have been paid to remedies (in particular, the desirability of discursive remedies such as the right of reply). The question is posed whether the Act addresses the core problem with libel law: the juridification and over‐complication of public sphere disputes, and the attendant cost of embroilment in legal proceedings.     

Law's Allure in American Politics and Policy: What It Is,What It Is Not,and What It Might Yet Be

Responding to a set of review essays, the author of Law's Allure: How Law Shapes, Constrains, Saves, and Kills Politics ( Silverstein 2009 ) argues that politicians and policy entrepreneurs fail to calculate the risks of juridification—the judicialization of policy combined with the legalization of politics itself—which have expanded and accelerated in the United States in recent decades. Paradigmatic case studies (on subjects including poverty, electoral districting, automated budgeting, war powers, abortion laws, and the regulation of tobacco as well as the environment) illustrate the risks of various patterns of juridification and construct an agenda for future research.     

The State as Parent: The Reluctant Parent? The Problems of Parents of Last Resort

This paper will explore the idea of the local authority as a reluctant parent. It will consider the extent to which this reluctance is produced by the care proceedings system and its consequences for children. Local authorities are both expected to refrain from intervening (care proceedings are a measure of last resort) and to be fully prepared for intervention (whilst leaving children with their parents). Amongst the themes which will be developed here are the impact of the juridification of social work and the emphasis on the courts for holding local authorities to account; the balance between voluntary accommodation and compulsory care; and the problems of resourcing care services. Its main focus will be on children who enter care because of abuse or neglect. Its thesis is that the conflicting expectations on local authorities, resource constraints, and considerations of legal process make them reluctant parents.     

两岸物权法草案最高额抵押权法制之比较研究

物权法定原则(numerus clauses)是德国物权法的重要基础,然而为因应社会经济变迁及需求,完全贯彻该项法律原则,将有限制物权发展、交易自由之虞,并会造成与社会经济生活严重脱节、难以贯彻民法上意思自治原则等疑虑。尤其是商业环境下经常从事继续性交易的企业组织,为因应经营规模扩大、国际化及多角化经营,部分公司选择向银行设定最高额抵押以举借中长期借款作为其最适融资决策。同时,东亚各国也将最高额抵押权法制化(legislation of maximum mortgage right)列为其物权法的修正重点。因此,本文首先从法律原理及商业习惯等两个面向,指出最高额抵押权法制化的主要缘由;其次,本文归纳最高额抵押权的法律特性,厘清最高额抵押权与担保物权一般特性的差异,并提出担保物权从属性相对化的发展趋势;再者,在两岸物权法竞相修订之际,详细介绍两岸物权法草案最高额抵押权法制的规范内涵,并采取比较法分析两岸物权法草案;最后,本文建议大陆物权法草案最高额抵押权法制,应朝向有利融资创新活动加以设计。     

Sex assessment using measurements of the first lumbar vertebra

Sex determination is a vital part of the medico-legal system but can be difficult in cases where the integrity of the body has been compromised. The purpose of this study was to develop a technique for sex assessment from measurements of the first lumber vertebrate. Twenty-nine linear measurements and five ratios were collected from 113 Chinese adult males and 97 Chinese adult females using digital three-dimensional anthropometry methods. By using discriminant analysis, we found that 23 linear measurements and two ratios identified sexual dimorphism (P<0.01), with predictive accuracy ranging from 57.1% to 86.6%. Using a stepwise method of discriminant function analysis, we found three dimensions predicted sex with 88.6% accuracy: (a) upper end-plate width (EPWu), (b) left pedicle height (PHl), and (c) middle end-plate depth (EPDm). This study shows that a single first lumber vertebra can be used for this purpose, and that the discriminant equation will help forensic determination of sex in the Chinese population.     

Choosing to limit choice: Self-binding directives in Dutch mental health care

In certain cases of chronic mental illness (for example bipolar disorder) a self-binding directive or Ulysses contract may be a helpful intervention to prevent harm to the person him- or herself and/or others. By choosing such an arrangement, the patient can indicate when and how mental health professionals may intervene against his or her will and provide indicated care which may lead to an improvement of the patient's mental condition. In the Netherlands, since 2008 the Compulsory Admissions Act has been amended and now includes a paragraph on self-binding. Starting from the Dutch debate and statutory regulation of self-binding in mental health care, a number of issues with broader relevance are discussed, particularly as these pertain to the legal regulation and juridification of self-binding. It is argued that too many detailed rules are a threat to increasing patient empowerment.     

Flexibility provisions in multilateral environmental treaties

In international politics, intergovernmental treaties provide the rules of the game. In this paper, we investigate the rules under which the contents of treaties may be changed, such as rules for adoption and entry into force and rules for dispute resolution. In the first part of the paper, we describe how frequently these rules are used in practice and how they are typically combined, based on 400 treaties and supplementary agreements from the field of international environmental law. Using correspondence analysis, we show that treaty provisions can be represented by a two-dimensional property space. The detected underlying dimensions express varying degrees of institutionalisation and flexibility, respectively. In the second part of the paper, we place amendment rules into the framework of a formal model in the incomplete contracts tradition. It is shown that there exists a trade-off between the risk of too little flexibility, which leads to frequent inefficient breach of the treaty, and the danger that the binding nature of the treaty and hence, the level of commitment by treaty members, is being undermined if the treaty can be amended too easily.     

The Shadows of the Law: Contemporary Approaches to Regulation and the Problem of Regulatory Conflict

Regulatory analyses often assume that compliance is desirable, with literature focusing on strategies to encourage "excellence" in adherence to regulatory goals. Yet, it is not unusual for disparate regulatory goals to exist that are based on competing values of what constitutes the "good society." It is this conflict that forms the substance of this paper. In cases of competing regulatory goals, techniques that encourage exemplary compliance in one area can create incentives to breach regulatory provisions of a competing regime. In such cases, generic regulatory techniques are unable to provide a useful means for resolving regulatory conflict but do allow a political delegation of conflict resolution to the "scientific" strategies of the regulator. In turn, the regulator places responsibility on companies for resolving competing regulatory demands. Successive delegation leads to juridification as well as regulators vying to retain primacy for their regime. This problem is examined through analysis of responsibilities for subcontractor safety under Australian health and safety law and sections of the Australian Trade Practices Act 1974 aimed at protecting competition.     

Who is steering the jurisprudence of the European Court of Justice? The influence of Member State submissions on copyright law

The juridification of the European policy process is increasingly fragile, and little understood. This study develops a novel methodology to investigate the influence of Member States on the rulings of the Court of Justice of the European Union (CJEU). The focus is on the domain of copyright law which has seen a dramatic escalation of preliminary references to the Court, indicating a normative void. Examining 170 documents relating to 42 cases registered between 1998 and 2015, we measure empirically the impact of submissions by Member States and the European Commission on the interpretation of copyright concepts. We show that France is the most influential country by some distance, both in terms of the number of interventions (an ‘investment’ in policy) and in terms of persuasive power (arguments adopted by the Court). The evidence also suggests that the departure of the UK from EU litigation will disturb the delicate balance of CJEU jurisprudence.     

Internal Market Rationality,Private Law and the Direction of the Union: Resuscitating the Market as the Object of the Political

This paper proposes a concept of ‘internal market rationality’ for the analysis of the political, legal and economic consequences of European integration. Internal market rationality refers to a specific pattern of political action in the field of internal market, which has emerged gradually due to the confluence of three main factors: first, the EU's functional institutional design; second, the processes of post‐national juridification; and third, a more contingent influence of ideas. In the interplay of those three factors, the interpretation of internal market has become overdetermined, restricting thereby the space of (democratic) politics in its regulation. This reification of internal market rationality has had a direct influence on the content of European law, as I demonstrate through the example of European private law. Internal market rationality has transformed the very concept of justice underpinning private law, the concept of the person or subject of law, the (re)distributive pattern of private law as well as the normative basis on which private law stands. I argue, finally, that a close examination of the legal, institutional and ideological arrangement behind internal market rationality provides clues for the democratisation of the EU.     

The Dangers of Co-witness Familiarity: Investigating the Effects of Co-witness Relationships on Blame Conformity

The purpose of this study was to examine the effects of pre-existing relationships between co-witnesses on statement similarity, after a post-event discussion. Although research studies have attempted to observe the effect of a pre-existing relationship on eyewitness pairs, few have investigated these effects on larger groups of co-witnesses. Four hundred and twenty participants took part in an eyewitness simulation experiment. Participants were placed into groups of five, and viewed video footage of a bar fight. After witnessing the event, participants discussed the event with group members before giving individual statements privately. The study employed a one-way between subjects design with three conditions: (1) participants discussed the event with familiar co-witnesses, (2) participants discussed the event with unfamiliar co-witnesses and (3) participants were not permitted to discuss the event with their co-witnesses (control). It was found that post-event discussion between co-witnesses increased the level of similarity in blame attribution within the eyewitness groups; however, this difference was only significant in groups where eyewitnesses shared a pre-existing relationship. In addition, the level of uncertainty was reduced when eyewitnesses took part in post-event discussions. It is suggested that this might be attributed to an increased level of informational influence between familiar co-witnesses. However, there was no evidence suggesting that post-event discussions led to an increase in false eyewitness statements.     

Reforming the United Kingdom Constitution: Law,Convention, Soft Law

The Governance of Britain Green Paper continues the programme of constitutional reform begun in 1997, and appears to reinforce the juridification of the UK's constitution. Nevertheless, several key reforms will be implemented not by legislation, but by creating new conventions. This article argues that such ‘declared’ conventions are best understood as a form of constitutional ‘soft law’, which attempt to influence constitutional behaviour rather than generating binding norms. Applying a regulatory analysis, it then argues that the case for a soft, rather than hard law approach to constitutional reform is weaker than its widespread use in the UK suggests. Finally, the article challenges the thesis that the political constitution is being replaced by a legal constitution, arguing that the government's attitude to constitutional reform still exhibits basic characteristics of political constitutionalism. Moreover, there is more to contemporary constitutional developments than a bipolar contest between political and legal constitutionalism.     

The Use of Tooth Crown Measurements in the Assessment of Ancestry

As the hardest tissue in the body, teeth have the potential to offer a wealth of biological information to the forensic anthropologist, which can include the assessment of ancestry. Using a large data set of dental measurements, the efficacy of mesiodistal and buccolingual tooth dimensions to discriminate between broad, geographically based groups is explored. A general pattern is identified: African populations have the largest teeth, Asians possess teeth of intermediate size, and Europeans have the smallest teeth. In a discriminant function analysis using crown measurements of all teeth (mandibular and maxillary and excluding the third molar), individuals were correctly classified in 71.3% of cases. When the sex of the individual is known, classification is improved up to 88.1% in females and 71.9% of males (cross‐validated). Based on these results, we argue that dental metrics can be regularly employed as part of the development of the biological profile.     

Getting Rid of Dichotomous Sex Estimations: Why Logistic Regression Should be Preferred Over Discriminant Function Analysis

Sex estimation is an important part of creating a biological profile for skeletal remains in forensics. The commonly used methods for developing sex estimation equations are discriminant function analysis (DFA) and logistic regression (LogR). LogR equations provide a probability of the predicted sex, while DFA relies on cutoff points to segregate males and females, resulting in a rigid dichotomization of the sexes. This is problematic because sexual dimorphism exists along a continuum and there can be considerable overlap in trait expression between the sexes. In this study, we used humeral measurements to compare the performance of DFA and LogR and found them to be very similar under multiple conditions. The overall cross-validated (leave-one-out) accuracy of DFA (75.76–95.14%) was slightly higher than LogR (75.76–93.82%) for simple and multiple variable equations, and also performed better under varying sample sizes (94.03% vs. 93.78%). Three of five DFA equations outperformed LogR under the B index, while all five LogR equations outperformed the DFA equations under the Q index. Both methods saw an improvement in overall accuracy (DFA: 86.74–95.79%; LogR: 86.74–95.76%) when individuals with a classification probability lower than 0.80 were excluded. Additionally, we propose a method for calculating additional cutoff points (PMarks) based on posterior probability values. In conclusion, we recommend using LogR over DFA due to the increased flexibility, robusticity, and benefits for future users of the statistical models; however, if DFA is preferred, use of the proposed PMarks facilitates future analysis while avoiding unnecessary dichotomization.