Friendship, Identity, and Solidarity. An Approach to Rights in Plant Closing Cases

Abstract. My focus is on the problem of plant closings, which have become increasingly common as the deindustrialization of America has proceeded since the early 1980s. In a well‐known article, Joseph William Singer proposed that workers who sued to keep a plant open in the face of a planned closure might appropriately be regarded as possessing a reliance‐based interest in the plant that merited some protection. I seek to extend this sort of argument in two ways. In the first half of the paper, I point to the way in which “tacit obligation” emerges in friendship between persons in the absence of explicit commitments. Employers and employees are of course not as such friends. But I argue that the development of tacit obligations binding friends provides a useful analogy for understanding the growth of similar tacit obligations binding plant owners to workers and local communities. In the second half, I draw on Margaret Radin's work on property and identity to ground a related argument. I suggest that the potential contribution of plants—and the traditions and networks of relationships they help to create and sustain—to the identities of workers and communities provides reason for at least some legal protection of employee and community interests.     

Comparing Legal Professions Cross-nationally: From a Professions-centered to a State-centered Approach

Legal occupations vary dramatically from country to country—in scope of activity, education, organization, and institutional setting. This essay proposes to study legal occupations focusing on their relations to the state rather than on their character as "professions." It builds on the recent renaissance of state-centered approaches in the social sciences. A review of the diversity of law work and legal occupations in different countries leads to state-centered conceptualizations that identify institutionally comparable features of law work. A sketch of the European historical background of modern legal professions yields theoretical principles that can inform the proposed approach. Variations in the role of the state and in the relation of lawyers to the state apparatus are then shown to be related to differences between national legal professions. Even where the law is primarily seen as a profession, the character of law work is better understood when related to the state.     

Correcting Community Service: From Work Crews to Community Work in a Juvenile Court

In 2001, the Clark County Juvenile Court in Washington State implemented the use of “restorative community service” (RCS) as part of its larger adoption of a restorative justice framework. This paper explores the court’s implementation and use of RCS, including: (1) the types of institutional changes made by the court in its development of RCS, (2) the types and qualities of social interactions observed by the researcher through participant observation at several RCS sites, (3) the practical implications of these findings for proponents of restorative justice in the use of community service in youth settings, and (4) the theoretical implications of these findings for sociological and criminological research on community service.     

作为社会共同体建构技术的法律修辞

法律不是一种纯粹客观的物质性力量,其对社会治理的参与,需要借助于社会共同体所分享的共识发挥作用。就此而言,法律可被理解为一种想象的力量。法律作为社会共同体的想象而获得力量,同时也通过生产想象而作用于社会共同体的建构,在实践中表现出建构社会共同体的技术。法律修辞通过将话语组织起来的方式,在社会中生产关于法律的想象共识,从而成为一种社会共同体的建构技术。法律修辞既能通过叙事来指引关于共同生活经验的想象,以历史和现实中所分享的共同经验形成认同,从而建构社会共同体;又能通过论证来指引关于共同价值观念的想象,使彼此激烈冲突的不同价值观借助修辞的软化而达成某种程度的共识,并通过关于价值判断的认同建构社会共同体。法律修辞的这些特点,使之在形成共识时所达成的更多是相对共识而非绝对共识,表现出模糊的特征,从而达成不完全理论化合意来回应现代社会中价值判断的多元分歧,更有利于社会共同体的建构。     

二元结构下“农民工”劳动权之一元法律保护:从身份到契约

本文试图分析我国二元经济结构下农民工劳动权利现状,说明二元经济结构不必然导致二元劳动力市场,也不必然导致农民工处于低端的第二劳动力市场。并通过分析现行理论、制度的弊端,指出对农民工劳动权进行二元法律保护是一个错误的继续。现行法律设置、法律执行和政府角色错位才是导致农民工劳动权受损的原因。因而,必须澄清劳动关系理论,实现对农民工"从身份到契约"的一元法律保护。     

当代法律方法论的转型——从司法三段论到法律论证

以司法三段论为主的法律方法论在现代社会受到各种挑战正日益失去解释力和说服力。本文立足于当代哲学和社会思想发展的趋向和基础 ,研讨了在此背景下法律方法论正发生一场深刻的转型 ,即从传统的司法三段论逐渐转向以法律解释和法律论证为理论维度的法律方法论。     

From Social Uprising to Legal Form

Does, or should, social uprising lead to new legal form? Ukraine’s current situation following the Revolution of Dignity in 2013–2014, with continuing violent conflict in Donbas and Crimea, suggests that not only is it unclear how a ‘new’ form is assessed, but existing transitional policies and frameworks are unlikely to be clearly implemented and enforced. An alternative analysis of transformation is necessary to address the conflicting aftermath of uprising within a particular historical and cultural context. The transformation that is happening in Ukraine is a continuum that is intellectual and psychological as much as reforming judicial systems and governance. Thinking transformation differently opens onto narratives, complexity of causes and a plurality of ideas of future, resolutions and justice. Such a shift in thought and analysis, informed by narratives and grounded research, is necessary in order to try to understand the current pursuit of justice in Ukraine.

     

Influence and Issues in the Legal Community: The Role of a Legal Elite

This article is the third and last in a series that has focused on the corporate actor elite of Chicago's legal community—those attorneys who practice law with and for the major business, social, civic, cultural, and charitable organizations in the city. In this paper, the focus is on the participation of the members of that elite in a series of issues that have arisen in both the legal community and the larger society in the recent past.
The article first examines the resources for collective decision making which the members of the corporate actor legal elite bring to the process of community issue resolution. It then examines in detail elite issue preferences and the patterns of elite participation in five professional and political issues. From this analysis an interesting "paradox of power" emerges: the elite is most successful on those issues in which it is least interested and active and least successful on those which most heavily attract its participation. The article concludes with a discussion of the reason for this paradox, basing its answer in larger sociological theories of the activation of different types of resources in different types of community conflict.     

Legal Validity as Doxastic Obligation: From Definition to Normativity

The paper argues for viewing legal validityas a doxastic obligation, i.e. as the obligation toaccept a rule in legal reasoning. This notion of legalvalidity is shown to be both sufficient for thelaywers' needs and neutral in regard to varioustheories of the grounds of validity, i.e. theoriesintended to identify what rules are legally valid, byproposing different grounds for attributing validity.All of these theories, rather then being alternativedefinitions of validity, presuppose the notion hereprovided.This notion is purely normative, but it allows for theconstruction of theories of the grounds of validitywhich give due importance to social expectations andinstitutions. As an example of how this may happen,one such theory is also provided. This theory, whichis presented through a detailed example of a judicialdebate, is based upon the recognition of the(instrumental) value of co-ordination, as thenecessary way to achieve the most valuable purposes ofthe law.     

Negotiating the Web: Legal Skills Learning in a Virtual Community

The web is a powerful medium for simulation and role play. It can thus be used for transactional learning, provided that the activities are sufficiently interactive and are designed to support the transaction. This article focuses on the use of web simulation to facilitate learning in Personal Injury negotiation. The underlying model of the simulation is constructivist. Students were divided into 'firms' and negotiated with each other over several months using virtual offices and a web-based virtual community. The results, both qualitative and quantitative, prove that the web can be used successfully in a number of forms of legal skills learning. The results also reveal the need to provide not only integrated resources for learning on the web, but also to support students' divergent learning in simulations and enable their social construction of knowledge within such web-based environments.     

法律解释的本体与方法

解释学经历了从方法转向本体的发展理路,在这一转向中,作为解释学核心概念的理解由人文科学的方法论转变为人的生存意义的创生方式。解释学的重心转换影响着法律解释理论的发展走向,传统法律解释理论将解释作为追寻立法者意图的方法消解了司法者的历史性,解释学的本体论转向使这一企图成为无法实现的乌托邦,但也由此强化了法律解释的创造性而解构法治的确定性;现代的法律解释理论将解释学的方法论纳入其本体论框架之中,实现了本体论解释学对法律解释的建设意义。因此,解释学的重心转换使法律解释处于方法与本体的张力之中。     

新时代法理：从冲突走向合作——建立法理型社会的法律社会学思考

以法律社会学的三大研究范式即功能主义、自由多元主义和马克思主义的社会观-国家观-法律观之间的主要差异——合作、竞争和冲突——为立论基础,论证了当代中国由马克思主义的冲突观转向功能主义的合作观的必需。依据这种＂从冲突走向合作＂的新时代法理,结合当代中国国家治理的六个基本法律问题,阐述了如何在关键转型上遵循新法律理性,从基调伦理与宪政改革上建立法理型社会秩序。     

Norway and Emissions Trading: From Global Front-Runner to EU Follower

A striking convergence has taken place in the design of the Norwegian and EU greenhouse gas emissions trading systems from 1998 to 2004. This article argues that the Norwegian adaptation to the EU did not take place as a consequence of perceived legal obligations under the European Economic Area agreement. Nor did it take place due to Norwegian actors being persuaded about the merits of the EU design. The main explanation has to do with interests. The EU market and politics are of course generally very important for Norway. However, before the US pulled out of the Kyoto Protocol in 2001, the Norwegian outlook in climate politics was global. The US pull-out accelerated the development and hence the attractiveness of the EU trading system and resulted in EU emissions trading as the most probable and possibly only international market for Norway to link up to. Hence, this analysis provides further support to the importance of being sensitive to the global context and institutional interaction when analyzing the relationship between the EU and its neighboring countries.     

Global Environment Threats and a Divided Northern Community

The EU, Japan, and the US now share many environmental norms, laws, and institutions and cooperate on international environmental matters through numerous bilateral and multilateral channels. They disagree, however, on how to deal with some of the most serious issues facing the global environment and the quality of human life including wide-scale biodiversity loss, climate change, the use of genetically modified (GM) organisms; the trans-boundary movement of hazardous wastes, and chemical safety. As these are all issues that require the involvement of developing countries if global environmental protection efforts are to be effective, the discord that exists among the Northern states is of tremendous significance. The US has pulled out of the Kyoto Protocol arguing that the treaty is poorly designed and would be detrimental to the US economy. Japan and the EU have had to try to find a way to bring the treaty into force without the participation of the world’s largest emitter of greenhouse gases and to convince participating countries to meet their targets even though this may put them at a competitive disadvantage. In the case of biodiversity loss, although the US initiated international negotiations on biodiversity preservation, it has refused to join the EU and Japan in ratifying the Convention on Biological Diversity. There are also differences between the US, on the one side, and Japan and the EU on the other, regarding the use of GM organisms. This article analyses the reasons for the differences that have emerged among northern states in their international environmental policy positions and what the implications of this northern policy divide are for the effectiveness and legitimacy of international environmental protection efforts.     

从法律原则到个案规范——阿列克西原则理论的民法应用

司法中针对某具体个案适用法律原则的通常情形是,没有既有规则可以适用(即"穷尽规则"),或者尽管有规则,但因其与原则相冲突而被排除适用。这两种情形的规范表现在实质上均可理解为原则之间的冲突。在相冲突的原则中确定何者最终适用于该具体个案,恰是阿列克西原则理论(尤其是其"竞争法则")所要解决的问题。适用"竞争法则"的核心在于找寻与确立优先条件或变量,相较于阿列克西的比重公式,参照生活常情或"事物本质"能为其找寻与确立提供更为具体的实践操作路径,因为优先条件或变量的确立由此转变为找寻连接基本案件事实与优先原则的中点(此即"裁判案件要确定的核心要素")。以"竞争法则"为理论根基,再辅之以确立优先条件或变量的具体路径,原则的规则化便水到渠成:即通过具体的优先条件或变量确立相冲突原则中优先适用的原则(即优先原则),适用优先原则的结果便是创设一个规则(即个案规范),优先条件或变量进而成为该个案规范的构成要件。个案规范才是裁判该具体个案的直接依据。     

Developing Countries and Global Environmental Governance: From Contestation to Participation to Engagement

Developing countries did not start off as demandeurs of global environmental governance. Although they are still rather skeptical about the global environmental enterprise, they have come a long way from being the vigorous contestants that they were three decades ago. This fascinating evolution has not only changed the views of developing countries but has also transformed the shape of the global environmental discourse, most significantly by turning what used to be global environmental politics into what is now the global politics of sustainable development. This paper charts this evolution by using the twin conceptual lenses of effectiveness and legitimacy and the heuristic markers of the three key global conferences on the global environment (Stockholm 1972; Rio de Janeiro 1992; Johannesburg 2002). The paper argues that the pre-Stockholm era was exemplified by a politics of contestation by the South; the Stockholm-to-Rio period was a period of reluctant participation as a new global compact emerged around the notion of sustainable development; and the post-Rio years have seen the emergence of more meaningful, but still hesitant, engagement by the developing countries in the global environmental project but very much around the promise and potential of actualizing sustainable development. The author is grateful to an anonymous review, and to Steinar Andresen, Ellen Hey, and Jessica Green for valuable comments.