Superego,special juries and a split law: eighteenth-century adultery trials viewed through Zizek’s lens

Over the course of several books, Zizek develops a psychoanalytical account of the symbiosis between the public law and the individual subject’s own acquiescence. It is of course a non-formalist theory, suggesting that formal law alone does not achieve social order. This article applies an element of the theory empirically to a historical question: to the question of how the behaviour of juries in a particular type of 18th-century adultery trial managed to be both the object of contemporary controversy and an expression of normative values. The social ambivalence signalled by that doubleness opens surprisingly well to Zizek’s theory that the power of law is divided between its own public form and the subjects’ expression of superego. The theory of the split law, the hidden supplement outside the system, clarifies the historically-specific example. However, the historical example also illuminates the theory: it suggests how the space for this supplement also exists within the system, which can incorporate and make use of it.

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.     

论人工智能作品的著作权法地位

著作权法的基本目标是促进社会文化发展,赋予作者著作权是一种制度工具,其条件是被激励创作的作品需有助于实现著作权法的基本目标。作品是著作权法的基石,其前提是由自然人作者创作,其特征包括多样性、价值性和稀缺性;它们与作品的可版权性密切相关,决定了著作权制度的必要性与合理性。无论是从著作权法基本目标出发,还是藉由作品的前提与特征考察,人工智能作品都不能满足著作权法对于作品的要求,从而难以成为著作权客体。对人工智能作品可通过网络登记加开放许可等措施予以管理,其对于著作权制度的挑战可以得到化解。     

LAWYERS AND MENTAL HEALTH PROFESSIONALS WORKING TOGETHER: RECONCILING THE DUTIES OF CONFIDENTIALITY AND MANDATORY CHILD ABUSE REPORTING

Lawyers are increasingly finding themselves working in conjunction with a social worker and/or a psychologist. This dynamic can be found in organizations that take a multi‐disciplinary approach to the law, such as New York City's Legal Aid Society and Lawyers for Children. Collaborative law is another such example. Collaborative law is an increasing trend in family law; it provides a divorcing couple the opportunity to work with professionals from different disciplines, without being subject to the court system. While a multi‐disciplinary approach to the law has the ability to maximize the value of representation, it also can create tension when inconsistent duties are imposed by conflicting professional obligations. A major area of conflict is between the lawyer's duty to maintain client confidences and the mental health professional's duty to report child abuse. This Note discusses the important policies behind these opposing duties. The Note recommends amending state child abuse and neglect laws in order to eliminate the conflict between the professions' duties and allow lawyers and mental health professionals to work together more harmoniously. Amending state child abuse and neglect laws will allow for mental health professionals working with a lawyer who represents a client the same reporting duties as lawyers in the process.     

监所检察权利保障职能的优化与实现-基于对新《刑事诉讼法》的研判

修改后的《刑事诉讼法》基于司法文明的要求,在更高层次和水平上完善了监所检察权利保障的司法职能。然而,监所检察．Y-作的客观现状与新《刑事诉讼法》的现实要求之间的矛盾在一定程度上消弭和制约了监所检察监督职能的发挥。因此,如何深化对新《刑事诉讼法》中涉及监所检察权利保障理念变革与制度更新的思考,是我们全面落实新《刑事诉讼法》、正确履行监所检察权利保障职能着重探讨的课题。我们应当以强化监所检察权利保障的理论基础为逻辑起点,优化监所检察权利保障职能的立法设计,并就如何落实好、发挥好新《刑事诉讼法》赋予监所检察的权利保障职能,解决好监所检察的执法理念转变、加强基础保障和机制创新等问题作出贡献。     

The case for time turners – the practicalities of being a new law lecturer

A time-turner is the device used by Hermione Granger in JK Rowling's Harry Potter books to turn back time so she can attend more than one class at the same time. They should, I believe, be standard issue for new law lecturers. This paper examines the practical day to day activities and my attempt to balance teaching, research, administration, training courses and other activities as a new law lecturer as well as maintaining a private life that is not wholly dominated by work.     

劳动刑法若干问题研究

劳动刑法是西方国家刑法学的一个重要分支学科.无论是从劳动刑法存在的现实基础,还是从劳动刑法的研究对象、内容、目标以及基本结构上分析,均可认为劳动刑法具有独立的刑法学分支学科地位.人类社会发展表明,劳动权是人权的重要组成部分,是公民生存权与发展权的基本内容.因此,保护以基本人权为外壳的劳动法益,应当是劳动刑法存在的起点与终点.基于有效、有力保护劳动法益的需要,我国亦应从"大刑法"中分解出劳动刑法,专门对之进行系统化、理性化的研究.     

城隍神的构造原理:法律与宗教互动的古代中国经验

超出世俗理性主义的法史研究模式,重建古代中国法律与宗教的真实联系,颇有必要。古代法官的司法经验中附着于城隍神身上的“神迹”不完全是神道设教的虚构,而可能是真实的个案。城隍神作为正义守护神的构成原理具有四个部分:儒法合流的理性主义法律体制不足以解决法律全面实施的难题;神道设教的传统国策可以发挥神灵震慑的作用;只有在城隍神的法庭上才可能实现远比国法所能企及的更大的正义,就是使一个人对其生前死后一切行为负责的因果报应正义;源源不断的报应故事使神迹和神明建立起了因果联系。还原正义守护神的构成原理有助于理解为什么与宗教疏离的法律会失灵。     

Making the Case for Socio‐legal Research in Land Law: Renner and the Law of Mortgage

The aim of this article is to enhance knowledge of and to encourage further research into two areas not traditionally the subject of socio‐legal research, namely, the work of Karl Renner and the English law of mortgage, for three reasons. First, an account of them supports the proposition that a true understanding of law requires knowledge of its origins, content, and function. Second, Renner's theory can contribute significantly to our understanding of law by offering an alternative to the polarized debate between legal autopoiesis and other sociological conceptions of law. Third, it has much to tell us about the relationship between legal and social change. In particular, Renner's work suggests that those seeking legal reform should look not to the legislature, but to those capable of influencing its ‘social function’. Those frustrated by the lack of doctrinal reform within the law of mortgage can take heart, therefore, from the continual process of change evident in its social function. Ultimately, however, further socio‐legal research is required, for a more developed understanding of the law of mortgage.     

Banishment and the Post-Industrial City: Lessons from Seattle

Seattle deploys several mechanisms by which individuals’ presence in particular spaces can constitute a crime. Through a range of means, police in Seattle are given wide authority to question and arrest those who appear as human manifestations of the “disorder” that is of concern to many. Importantly, these programs accentuate the power of criminal law by mobilizing other forms of law, most notably civil law and administrative law. This legally-hybrid structure works to accentuate the police’s power notably. Yet increased police power does not actually work to reduce “disorder” to any appreciable extent. For this reason, and others, we suggest that different approaches to addressing social marginality represent more promising avenues for cities like Seattle to explore.     

The law and the public's health: a study of infectious disease law in the United States

Law plays crucial roles in the field of public health, from defining the power and jurisdiction of health agencies, to influencing the social norms that shape individual behavior. Despite its importance, public health law has been neglected. Over a decade ago, the Institute of Medicine issued a report lamenting the state of public health administration, generally, and calling, in particular, for a revision of public health statutes. The Article examines the current state of public health law. To help create the conditions in which people can be healthy, public health law must reflect an understanding of how public health agencies work to promote health, as well as the political and social contexts in which these agencies operate. The authors first discuss three prevailing ways in which the determinants of health are conceptualized, and the political and social problems each model tends to create for public health efforts. The analysis then turns to the core functions of public health, emphasizing how law furthers public health work. The Article reports the results of a fifty-state survey of communicable disease control law, revealing that few states have systematically reformed their laws to reflect contemporary medical and legal developments. The Article concludes with specific guidelines for law reform.     

What's Law Got To Do With it? How and Why Law Matters in the Regulation of Sex Work

Drawing on recent empirical work that considers the relationship between different legal approaches to the 'problem' of prostitution, this article argues that the frequently drawn distinction between apparently diametrically opposed positions, such as prohibitionism and legalization, is certainly less significant than is often assumed and may, in fact, be illusory. This lack of distinction raises serious questions as to law's role in regulating sex work. In response to claims that law is 'merely' symbolic in its influence, I argue that these similarities arise precisely because law does matter (albeit in a different way from that assumed by a sovereign-centred understanding of the legal complex), and offer a complex and critical account of the role of modern law in regulating sex work. This approach not only more accurately elucidates the ways in which law supports dominant structures, in this case neo-liberalism, but offers some optimism for its (albeit limited) potential to transform.     

Expressive Law,Social Norms,and Social Groups

To understand how law works outside of sanctions or direct coercion, we must first appreciate that law does not generally influence individual behavior in a vacuum, devoid of social context. Instead, the way in which people interact with law is usually mediated by group life. In contrast to the instrumental view that assumes law operates on autonomous individuals by providing a set of incentives, the social groups view holds that a person's attitude and behavior regarding any given demand of law are generally products of the interaction of law, social influence, and motivational goals that are shaped by that person's commitments to specific in‐groups. Law can work expressively, not so much by shaping independent individual attitudes as by shaping group values and norms, which in turn influence individual attitudes. In short, the way in which people interact with law is mediated by group life.     

Legal education and early career mentoring: mid-career attorneys' pro bono commitment

Much extant research suggests that students who enter law school highly enthusiastic about public interest law and pro bono work often take mainstream jobs with minimal participation in pro bono activities. Frequently, these studies place some of the blame on law schools. This study, however, suggests that law schools, as well as mentors in first post-graduation jobs, might positively affect attorneys' level of commitment to pro bono work. This longitudinal study is unique in that it includes measures of students' attitudes during law school and in mid-career. It raises the possibility that attorneys whose level of commitment to pro bono work did not decrease since law school were substantially influenced by their law school training and early career mentors. Although some students will leave law school with less dedication to public interest law and pro bono work, this study offers hope that, through legal education and mentorship, other students will maintain their strong commitment to helping poor clients.     

关于“中国古代因何无版权”研究的几点反思

中国古代因何无版权是一个伪问题,版权属于近代范畴。这个伪问题的提出,是因为把版权制度的功能误解为鼓励创造。理论上,鼓励创造可以属于任何历史范畴。事实上,版权制度的真正功能是维系作品与资本的结合,后者属于近代的产业结构。古代无版权不是中国问题,版权不属于古代的范畴。许多研究成果在解答这个伪问题时夸大了文化解释的作用,而且在文化解释的过程中以经典引述代替社会现实分析的现象比较突出,对中国传统文化的解读亦存在诸多误区。中国古代因何无版权之问与答均值得反思。     

Law and Violence in Richard Wright's ‘Native Son’

This paper seeks to intervene in the continuing debate around violence as a function of law and violence as a condition of justice. It examines a key literary work of the American civil rights movement as an instance of the establishment of an ethical community anchored by the literary text, and argues that, within such a community, the literary text is the counter-violence to which the law can yield. This revised version was published online in July 2006 with corrections to the Cover Date.     

徒刑中自由内容与结构初探——从中国囚犯劳动报酬获取权利之实际状态切入

徒刑到底剥夺或限制着罪犯哪些自由目前并不清楚。以囚犯劳动报酬获取权利之实践来论述徒刑中被依法剥夺的自由类型和结构，就是一种很好的尝试。刑法除了规定囚犯必须参加劳动外，并未提及劳动报酬获取权，但规定只要罪犯劳动表现和贡献符合法定标准，就可获得减刑、假释，以劳动成果换取自由是一项制度实践；但此做法目前实际上还只专用于少数人而不普遍适用于一般服刑者，这表明从学理上揭示徒刑被剥夺的自由类型与结构有重大的实践意义。     

Laws of Empire

The central characters in Hardt and Negri'sinfluential Empire are a globalized``empire' and the revolutionary ``multitude'opposing yet constituting it. Althoughinstantiated as substantial and achieved, whenclosely observed, Empire and the multitudebecome insubstantial and unachieved. Thesecontrary qualities can be combined in law. Somesuch resolution is signalled by the largeinitial emphasis which the work places on lawas the existential expression of Empire. Yetlaw plays at best a peripheral and fitful partin the rest of Empire. There is a blockon the uninhibited resort to a law which wouldcombine the contrary qualities and this blockis the monism infusing the multitude and thencethe Empire it constitutes. Nonetheless, thatlaw is sufficiently present in the work, notonly to counter and substitute for itsimpossible monism, but also to accentuate thesignificance of law in modern arrogations ofthe ``global' – as the little exercise whichnow follows will reveal.     

强迫职工劳动罪初探

根据无刑罚即无犯罪原则,应认为强迫职工劳动罪的犯罪主体是直接责任人员,所谓单罚制在刑法分则中并无体现。暴力、胁迫、殴打、非法拘禁等均是限制人身自由的手段。从立法完善的角度考虑,应规定本罪的主体包括自然人和单位,将罪状修改为“以限制人身自由的方法强迫他人劳动,情节严重的……,”并增设转化犯的规定。     

The Optional European Code on the Basis of the Acquis Communautaire—Starting Point and Trends

Abstract:  The idea of creating a European Code for contract law, though recent, has gathered pace. Although most work towards this goal has so far assumed that the principles should be constructed through critical comparative law studies of the existing contract laws of Member States, it is argued here that the acquis communautaire provides a modern and democratically endorsed collection of principles, which can be quite well systematised, that should provide the starting-point for scholarly endeavours towards the construction of a code of contract law.