The Semiotics of Memes in the Law: Jack Balkin’s Promise of Legal Semiotics

The jurisprudent Jack M. Balkin introduced the analogy of memes as a semiotic device for understanding the law. His notion of cultural software into which this device was inserted is developed first, followed by a development of memetic analysis and its several semiotic dimensions. After a brief treatment of the position of ideology in view of memetic analysis, and the corresponding notion of transcendence, Balkin’s explicitly semiotic setting for this doctrine is displayed. This method is then briefly applied to the civilian doctrine of patrimony, to supplement Balkin’s application of it to common law institutions.     

Hybrid Texts and Uniform Law? The Multilingual Case Law of the Court of Justice of the European Union

The case law of the Court of Justice of the European Union (ECJ) is shaped by the language in which it is drafted—i.e. French. However, because French is rarely the mother tongue of those drafting that case law, the texts produced are often stilted and awkward. In addition, those drafting such case law are constrained in their use of language and style of writing (owing to pressures of technology and in order to reinforce the rule of law). These factors have led to the development of a ‘Court French’ which necessarily shapes the case law produced and has implications for its development, particularly insofar as it inevitably leads to a type of precedent in that case law. That case law also undergoes many permutations of translation into and out of up to 23 different languages. The resultant texts that make up the case law are hybrid in nature—consisting of a blend of cultural and linguistic patterns, constrained by a rigid formulistic drafting style and put through many permutations of translation. The present paper investigates the production of the Court’s multilingual case law and considers whether the hybrid nature of that case law can actually aid the presentation (and thus the development) of a ‘uniform’ EU case law.     

Hong Kong＇s Case Law System in the Changing Constitutional Order

回归前的香港在港英宪政秩序下建立了英式司法体系,经过长期英国普通法传统的培养、训练以及结合香港本土情况的司法实践积累,形成了英属司法区的判例制度。回归初期香港处于新旧宪政秩序转型和过渡的阶段,中央与特区之间、大陆法制与香港普通法传统之间的摩擦和冲突在所难免,香港的判例制度因此呈现出新的特点和变化。然而正是在这种相互冲突和相互摩擦的过程中,中央与特区、大陆法制与香港普通法传统寻找到了相互磨合和相互适用的方式和路径,香港判例制度的发展也因此从中获得了新的生命意义。     

The Turn to Imagination in Legal Theory: The Re-Enchantment of the World?

Various contemporary legal theorists have turned to ‘imagination’ as a keyword in their accounts of law. This turn is fruitfully considered as a potential response to the modern condition diagnosed by Max Weber as ‘disenchantment’. While disenchantment is often seen as a symptom of a post-metaphysical age, it is best understood as the consummation of metaphysics and not its overcoming. Law’s participation in disenchantment is illustrated by way of Holmes’ parable of the dragon in ‘The Path of the Law’, which illustrates the rationalization and demystification of law. Four ideal–typical turns to ‘imagination’ are identified: the theoretical (turning to imagination as synthesis), the progressive (imagination as empathy), the transformative (imagination as invention) and the nostalgic (imagination as attunement). Most of these turns to imagination remain complicit with disenchantment. ‘Imagination’ often appears only to be harnessed in the service of more conventional keywords of legal thought: theoreticians turn to imagination as synthesis to serve as a form of super-reason; progressives turn to imagination as empathy to make law a more effective instrument; transformatives turn to imagination as invention to serve as a form of super-will. By turning to imagination as attunement, nostalgics come closest to accepting a world that is not masterable, i.e. they come closest to accepting an enchantment that is a gift and not the product of our imaginations. Indeed, modern imaginations are themselves symptoms of disenchantment. If Weber’s diagnostic calls for a human response, it cannot be one of overcoming disenchantment by imaginative re-enchantment: it belongs integrally to enchantment to exceed any and all human capacities.     

Beyond the Law?: The Justice of Deconstruction

This paper offers a close reading of Derridas essay Force of Law that emphasises the twin strengths of a deconstructive approach to questions of law and justice -- textual analysis and political context. Derridas interest is in limit or test cases, and so he engages with the fraying edges of the law, its borders, the frontiers that are most heavily policed because they are most fragile, for example capital punishment, genocide, general strikes and terrorism. Derrida undertakes an exploration of violence through a reinterpretation of Walter Benjamins Critique of Violence. At the heart of Derridas difficult argument is a demand for justice that goes beyond the cataloguing of specific injustices, and beyond the terms of Benjamins critique. The utopian impulse that underpins Force of Law is carried over into Specters of Marx, Derridas recent explicit grappling with the legacy of Marxism. The links between these two texts by Derrida implies a sustained politics of radical commitment on the part of deconstruction, a commitment to future forms of legality and egalitarianism, a theory of justice posited upon prescience rather than precedent.     

The Problem of Social Order: What Should We Count as Law?

In these two fine contributions to the relatively small body of empirically‐grounded theoretical accounts of law, Fred Schauer and Richard McAdams focus on the two key elements of any legal system: the coordination of conduct that individuals have an incentive to engage in if they believe others will also, and the coercive force that is needed to deter conduct when coordination incentives are absent or insufficient. Both contributions deepen our understanding of the dynamics of coordination and coercion. But both also focus primarily on the concept of law as a set of rules generated and enforced exclusively by government. In this comment, drawing on recent work with Barry Weingast, I emphasize the importance of extending the scope of analysis to include settings in which governments are missing or weak and where legal order has not yet been achieved or stabilized—the challenge that faces many poor and developing countries around the world and the challenge that today's advanced legal regimes overcame historically. In our account, coordination and coercion are not substitute mechanisms, but are deeply linked: prior to the establishment of wealthy stable governments (and perhaps even in the presence of such governments), coercive penalties are delivered only if the decentralized application of punishment by ordinary individuals is successfully coordinated and incentivized.     

The Distorted Jurisprudential Discourse of Nazi Law: Uncovering the ‘Rupture Thesis’ in the Anglo-American Legal Academy

It has been remarked that the ‘rupture thesis’ prevails within the Anglo-American legal academy in its understanding of the legal system in Nazi Germany. This article explores the existence and origins of this idea—that ‘Nazi law’ represented an aberration from normal legal-historical development with a point of rupture persisting between it and the ‘normal’ or central concept of law—within jurisprudential discourse in order to illustrate the prevalence of a distorted (mis)representation of Nazi law and how this distortion is manifested within the discourse today. An analysis of the treatment of Nazi law in two major 50th anniversary publications about the 1958 Hart–Fuller debate, and a review of representations of the Third Reich within literature from the current discourse, demonstrates that the rupture thesis continues to be reproduced within jurisprudence. An examination of the role of Nazi law in the Hart–Fuller debate itself shows that it can be traced back to the debate, where it was constructed through a combination of conceptual determinism and historical omission. It concludes that the historical Nazi law has great significance for the concept of law, but neither positivism nor natural law has properly theorised the nature of the real Nazi legal system.     

The Advent of Preventive Criminal Law: An Erosion of the Traditional Criminal Law?

Criminal law in contemporary societies is undergoing a transformation or according to some, even a paradigm shift. The reach of criminal law is now extended to terrains that were hitherto immune to criminalization. These new forms of criminalization. in post-heroic risk societies are targeting conduct well before it causes a harm. The prime examples of this preventive criminalization. are pre-inchoate offences, crimes of possession of “innocent” objects and crimes of abstract endangerment. The common trait of these offences is that they enable the so-called preponing criminal liability (Vorverlagerung), through which the earliest of preparatory acts, neutral, everyday activities such as merely standing around or merely possessing may well fall within the reach of criminal law. This phenomenon is now taking place virtually everywhere considered by many as an erosion of the traditional post-enlightenment criminal law model. Yet, proponents of the preventive criminal law are suggesting that such laws are needed in order to avert risks (terrorist attacks, for instance) while they are at preparation phase. There is, therefore, a tension between the traditional criminal law and new security interests that pose new questions which need to be addressed by a meticulous analysis. In this article I shall try to deal with following questions: Whether these preventive offences are inherently incompatible with the rule of law? How far a law-abiding nation can go in criminalizing preparatory acts? Are there any promising constraining constitutional principles or instances that delimit preventive criminalization?     

The Impact of Subsequent Customary International Law on Treaties: Pushing the Boundaries of Interpretation?

Conflicts between treaty and customary norms are endemic to international law and are increasingly frequent. Yet there is nothing automatic or mechanical about interpreting and resolving such conflicts, which require a high degree of contextual sensitivity. Their identification and interpretation test the limits of the rules of treaty interpretation as codified in the Vienna Convention on the Law of Treaties, particularly where treaty modifications by subsequent customary law are concerned. This article endeavours to sketch how the latter phenomenon occurs, and the interpretative and evidentiary challenges involved—many of which remain underexplored. The analysis begins with the identification and interpretation of newly emerged customary norms, before delving into the process of determining their treaty-modifying potential. This involves the side-by-side interpretation of the pre-existing treaty and the customary norm to assess whether there is a genuine incompatibility that cannot be resolved through harmonious interpretation. The final inductive step is to ascertain the parties’ consent to displace the treaty norm in favour of the customary norm, subject to certain crucial requirements. Against the backdrop of the organic and continuous interplay between treaties and customary international law, these interpretative and evidentiary steps serve to ensure that the parties’ intention remains paramount.

     

The Changing Position of Legal Academics in the United Kingdom: Professionalization or Proletarianization?

This article analyses changes to United Kingdom (UK) university law schools during the period coinciding with Phil Thomas’ career as a law teacher – the latter part of the twentieth century and the first two decades of the twenty-first – in part illustrating the analysis with other examples from Thomas’ career. We will focus specifically on the way in which what it means to be a legal academic has altered, with UK legal academics having been professionalized as a community during this era. Yet, seemingly paradoxically, it is also an era during which, many have suggested, academics in UK universities have become a proletariat.     

Liberalizing British Defamation Law: A Case of Importing the First Amendment?

Regardless of whether American law tends to be too outlying to be relevant to the rest of the world, the U.S. free speech jurisprudence is more impactful than ever. Indeed, the United States remains a real-life laboratory for other countries in resolving clashes between press freedom and reputation. Jameel v. Wall Street Journal Europe and other recent English media libel cases are a good illustration. This article examines the liberalization of U.K. defamation law in connection with the U.S. actual malice rule while noting English courts' significant adoption of neutral reportage, which American courts consider to be less viable as a libel defense. The principle of functionality informs the article's analytical framework.     

“The Unnamed Third”: Roberta Kevelson's Legal Semiotics and the Development of International Law

International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique -     

To Explore the Source of the Effect of Law——By commentary on the theory in legal positivism

以探求法律效力来源问题在实证分析法学中的解答为目标,从哲学上的休谟难题开始阐发,试图通过对选取的几位分析法学家的理论分析,最终理解实证分析法学对于该问题的解答,并试图阐明:法律效力的来源应当是来自于法律体系的内部,即来自于法律自身.法律与道德不可分离的论断只会掩盖问题的实质,只有厘定法律的界限,才能有助于我们更加清晰地理解法律效力的来源,最终真正理解法律以及法律体系的内涵.     

Commanders on Trial: The Blaškić Case and the Doctrine of Command Responsibility under International Law

Netherlands International Law Review -     

The Elective and Automatic Theories of Termination in the Common Law of the Contract of Employment: Conundrum Resolved?

If a party to an employment contract commits a repudiatory dismissal or resignation, it has long been unclear whether the other party has the option either to terminate or affirm the contract (the elective theory) or whether the former's breach operates to bring the contract of employment to an end (the automatic theory). The recent decision of the Supreme Court in Société Générale (London Branch) v Geys has finally resolved this question. By a majority, the Supreme Court held that the elective theory also applies in the context of a wrongful repudiation of the employment contract by express dismissal or resignation. This note examines the significance of Geys in the context of the common law of the contract of employment and evaluates whether a number of related issues surrounding the breach and termination of the employment contract have been resolved.     

Who is Afraid of Radical Pluralism? Legal Order and Political Stability in the Postnational Space*

Constitutional pluralism has become a principal model for understanding the legal and political structure of the European Union. Yet its variants are highly diverse, ranging from moderate “institutional” forms, closer to constitutionalist thinking, to “radical” ones which renounce a common framework to connect the different layers of law at play. Neil MacCormick, whose work was key for the rise of constitutional pluralism, shifted his approach from radical to institutional pluralism over time. This paper reconstructs the reasons for this shift—mainly concerns about political stability that also underlie many others' skepticism vis‐à‐vis radical pluralist ideas. It then seeks to show why such concerns are likely overdrawn. In the fluid, contested space of postnational politics, a common, overarching frame is problematic as it might inflame, rather than tame, tensions. Leaving fundamental issues open along radical pluralist lines may help to work around points of highly charged contestation and provide opportunities for resistance from less powerful actors.