‘Payback’, Customary Law and Criminal Law in Colonised Australia

‘Payback’ is an Australian Aboriginal English term (also known in Melanesia) commonly understood to refer to a vendetta. Satisfaction of a grievance, such as a death or wife-stealing, may be sought through ritual ceremony, gift-giving, corporal punishment and ordeal, or even killing. Such phenomena, often characterised as vendetta or feud, have been noted by non-Aboriginal observers during most of the period of European colonisation (from 1788). In spite of the presumption of sovereignty that recognises only one law, it is shown that the criminal law in Australia has conceded limits to its reach in dealing with payback. More recently we observe that judicial attitudes have tended to recognise the positive functions of certain forms of payback in resolving conflict and upset in communities. Far from being eradicated by colonisation, payback retains a rationality in Aboriginal communities in a country that is subject to white man's law.     

论司法实践中的痕迹鉴定和同一认定结论

痕迹鉴定是一种司法活动，经鉴定后得出的结论尤其是同一认定结论在司法实践中具有很大的价值，某些时候成为定案的主要或唯一证据。但在实践中，却曾发现本来只能给出种类认定等其它结论，却得出了同一认定结论；或者能够得出同一结论却只给出种类认定等其它结论。前者有可能误导法官，被法庭采信成为定案的证据之一，导致冤、假、错案：后者则淹没了同一认定结论在司法实践中应有的价值。只有掌握痕迹鉴定的规律，充分挖掘痕迹本身的信息，才能最大程度发挥同一认定结论的司法价值。     

Comparing the effects of weathering and microbial degradation on gasoline using principal components analysis

Ignitable liquid residues recovered from a fire scene will often show signs of weathering as a result of exposure to the heat of the fire. In addition, when the substrate is rich in organic matter, both weathering and microbial degradation may be observed. In this study, 20 μL aliquots of fresh gasoline samples were intentionally weathered and also subjected to microbial degradation in potting soil. These samples were then analyzed using a passive adsorption-elution recovery method and gas chromatography/mass spectrometry. Peak areas from compounds of interest were normalized and autoscaled and then subjected to principal components analysis. This analysis showed that while lower boiling compounds are subject to weathering, a different set of compounds are subject to microbial degradation. Of the compounds studied, heptane, octane, toluene, and ethylbenzene were the most vulnerable to both weathering and microbial degradation. In contrast, 1,3,5-trimethylbenzene and 2-ethyltoluene were the most resistant to both phenomena.     

论纠纷的构成机理及其主要特征

关于纠纷的认识，法学界并没有一个严格的界限，一般是笼统地将除刑事案件之外的一切社会不协调现象称为纠纷，而在社会学家看来，纠纷往往等同于社会冲突。事实上，从带有普遍性的矛盾、冲突到围绕着某一具体权益所发生的争议，并不是所有的这些不协调现象都和法律制度相关，只有那些属于法律框架之内的诸种不协调现象，或者可以通过法律程序解决的类似现象才具有法律上的意义。并非所有的纠纷都属于冲突，也不是所有的冲突都可以纳入法律的调整范围。纠纷的主要特征在于纠纷主体的明确性、纠纷双方的对抗性、纠纷的主观性和社会性以及纠纷解决上的自主性。     

Pulmonary bone marrow embolic phenomena. Antemortem reactions in traumatic immediate death

This study is based on an examination of lung tissue from 11 cases of traumatic immediate death with fracture. According to our investigation, pulmonary bone marrow embolic phenomena, such as megakaryocytes associated with fat globules in pulmonary arterioles and a megakaryocyte embolism in a pulmonary capillary, develop in most traumatic immediate death cases with fracture. From the results, we suggest that these pulmonary bone marrow embolic phenomena can be certain evidence of antemortem violence in traumatic immediate death cases.     

Regional disparities and economic growth in Russia: new growth patterns and catching up

The regional disparities in Russia are increasing since transition started in the 1990s, as result of the structural processes of reorganisation and reallocations of resources taking place in the territory. The scopes of this contribution are two folds: to clarify the theoretical and policy background in analysing regional development in the transition and in particular in Russia, and to analyse the specificity of the spatial development and the regional disparities patterns in Russia. The economic geography is recognised among the different theories, very useful for helping to understand in particular the recent phenomena of new concentration pattern in Russia, giving a key of analysis of new polarisation trends: new trends toward urban concentrations in the Western regions, de-population of the Eastern regions, rural decline in those regions faraway from large urban agglomerations. In fact the empirical analysis indicates two dominant phenomena in the up-surging of regional disparities: the increasing weight of the capital city, Moscow as agglomeration effects brings the polarisation phenomena; and the strengthening of the natural resources and energy endowed regions. There is the question whether Russia, at this stage of development, can pursue an active regional policy toward equity targets or whether, for the target of sustaining macro-economic growth, there is the urgency to keep selected priorities based on the best performing poles. A difficult balance between the two targets would be the most suitable answer.     

Discretion and corruption: The Chilean judiciary

Corruption in the judiciary and its effects on the budget of that branch of government, the efficiency of justice (prompt or belated) and its quality (biased or impartial) are analyzed. The discretionary powers of the Supreme Court and those granted to judges to manage their courts, calendar and case load, and the hierarchical administrative structures of judiciaries, which function as a queueing system, may be used as a tool to maximize graft. These phenomena reveal links between institutional forms and incentives. Using the case of Chile and the exceptional emergence of corruption within the judiciary during the military dictatorship, the role of democracy as a punishing and preventive mechanism is highlighted.This article was written while the author was a Senior Fellow at the Orville Schell, Center for International Human Rights Law at Yale Law School, and under the auspices of the North-South Center of the University of Miami.     

权利的结构：以商法为例

权利的合成、分解和单纯结构变动是商法中的常见现象，这些现象呼唤一个权利结构方面的理论。结构是权利的重要参数，具有无限性、独立性和整体性等特征。权利的合成、分解和单纯结构变动既可能诱发权利的质变，又可能改变权利的功能，这两点已经被商法广泛运用。权利结构的设计应当是商法乃至整个私法的基本问题之一。     

论法与法律意识

法与法律意识的相互作用及其矛盾运动 ,是法存在与发展的基本矛盾之一。法律意识的本原是而且只能是法律现象。法律意识的独立性 ,既相对于法律现象 ,也相对于除法律现象之外的其它现实的社会关系。培养法律意识的目的 ,主要是依靠一种进步的与科学的法律意识作为指导 ,形成正确的法概念 ,制定出一套好的法律规范与原则 ,建立一套好的法律制度 ,保证法律在实际生活中得到最有效的执行与遵守 ,使法的作用得到最有效的发挥。     

The production and reproduction of prostitution

This article is the result of a study aimed at grasping the knowledge of ‘prostitution’ since 1999 when the purchase of sexual services was criminalised in Sweden. Key informants drawn from the police, social services and voluntary organisations, who work in close proximity to prostitution, were interviewed. We focus on how the position of the informant, considering governmental and non-governmental exercise, effects her or his understanding, and reproduction, of the phenomena. The central themes are the question of definition, the importance of exposure and the occurrence of male prostitution. It is suggested that a study of these themes shows how the traditional position of the bad woman as vendor and the invisible man as purchaser is preserved. Hereby all the other constellations, that may as well be considered to be prostitution, remains unproblematized.     

应然犯罪之构成与法定犯罪之构成——兼论犯罪构成理论风格的多元发展

三要件论最重要的出发点是落实罪行法定原则 ,意在构建法定犯罪之构成 ;最重要的体系特征在于把罪状当作整体来把握 ,由此决定了它依托法律形式进行注释的、顺应司法认定思路的、局限于法定犯罪之犯罪构成的理论风格 ;四要件论是意在构建应然犯罪之构成 ,由此决定它从存在的犯罪现象出发 ,依托犯罪行为结构来揭示、把握犯罪法律因素的应然犯罪之犯罪构成的理论风格。从不同角度阐述犯罪构成 ,不仅可以并行不悖 ,而且还能相得益彰。我们既需要应然犯罪之犯罪构成论 ,也需要法定犯罪之犯罪构成论。现在的问题主要不在于如何把“四要件”论发展到完美无缺的程度 ,也不在于如何选择一个理论体系、抛弃另一个理论体系 ,而应在明确理论倾向、风格、功能的基础上 ,寻求犯罪构成理论风格的多元发展。     

Valuations – or How to Say the Unsayable

In this paper, the author revisits "the emotive theory of value" and argues that values are not entities but nothing other than "linguistic fictions". Accordingly, valuations—i.e., valuing actions—can be defined as approving or disapproving attitudes of a subject to some object. In this perspective, values cannot be true or false: What we can do is just compare them with regard to strength. As a consequence, value judgments are to be understood as sentences which are used either to say that a subject s values an object o positively or negatively, or to express (evince) a valuation. The author then shows some relations between normative and evaluative discourses. First, he claims that norms as well as valuations are not true or false. Second, he argues that both may be explained or justified, even if the former are usually justified teleologically whereas the latter are explained referring back to the subject's background and life-style. Third, he notes that a legal order originates from the fact that valuations "crystallize" into norms. Finally, the author examines some further questions related to his analysis. In particular, he argues that the different realms of values, e.g., morals, aesthetics, politics, etc., do not correspond to different evaluative attitudes, but to different phenomena and diverse spheres of human life.     

Spontaneous hypnosis in the forensic context

"Hypnosis" denotes either specific phenomena (altered volition, perception, cognition, and recall) or interpersonal transactions that often elicit them. Basic research leads to paradox: hypnosis is validated, and shown to be dissociative in essence, at the same time that neither its phenomena nor transactions can be separated from those of everyday living without logical absurdity. This paradox can be resolved by assuming that consciousness and volition are complex, occurring simultaneously at many levels in the same waking individual. Hypnotic-like phenomena and transactions occur spontaneously, in either covert or overt forms. The former are pervasive, whereas the latter are often associated with psychological trauma. Forensic implications are twofold: for criminal responsibility, and the reliability of eyewitness testimony. Hypnotic-like states and transactions are rarely affirmed as an insanity defense because at some level these subjects are aware of what they are doing and why. Diminished capacity and mitigation of sentence are more appropriate defense strategies. Several conflicted traditions of case law have evolved to protect eyewitness testimony from hypnotic-like distortions in cognition, perception, and memory that can occur either during or outside of formal hypnotic procedures. These include the admissibility of posthypnotic testimony, due process safeguards at eyewitness identification procedures, and the admissibility of expert testimony on the findings of eyewitness research. These areas are inseparable from one another and demand a systematic coordinated approach.     

并非有一种值得期待的宣言——我们时代的法学为什么需要重视方法

每一个时代都有自己的独特的法律现象或法律问题,各个时代的法学必须针对这些现象或问题提出新的解释或解决方案。中国法学现今的问题是:对什么是法学之“学”,尤其什么是法学的性质和立场并没有统一而明确的认识;知识生产无序化的现象;法学不能为实践提供智力支持。针对上述问题,我们的对策是:一是让法学的知识兴趣从政策定向转向司法定向;二是使法学视角返归实在法;三是法学向方法的回归。法学方法论的研究,从一个侧面为我们的法学建构提供一种观照的镜鉴,一种特殊的精神气质和建立法学知识标准的某种进路。我们可以对一切缺乏方法论支持的所谓学术创造提出最低限度的质疑。     

Coming Clean About the Criminal Law

This paper addresses three doctrinal phenomena of which it finds evidence in English law: the quiet extension of the criminal law so as to criminalise that which is by no means an obvious offence; the creation of offences the goal of which is not to guide potential offenders away from crime; and the existence of offending behaviour which is not itself thought to justify arrest or prosecution. While such phenomena have already been criticised by other criminal law theorists, this paper offers a critique to which little attention has yet been paid. It argues that the existence of these phenomena has been concealed from public view: that the organs of state have encouraged the belief that they are no part of English law. The paper then argues that it is high time the state came clean. The state owes its people answers for the imposition of the criminal law: it must account for the creation and enforcement of any given criminal offence. When the state misleads its people about the criminal law’s scope, goals and enforcement, it refuses to provide those people with the answers they are owed.     

Recognition of cemetery remains in the forensic setting

Cemetery remains exposed through vandalism or natural phenomena are frequently brought to the attention of law enforcement agents or medical examiners. Although it is often difficult to distinguish cemetery remains from those of medicolegal significance, clues to their origin may exist. Characteristics consistent with cemetery remains include physical characteristics associated with the embalming process. Characteristics indicative of cemetery remains include functional or ornamental artifacts associated with the coffin, devices used in embalming the body, and elevated levels of embalming chemicals in the soft tissue.     

Campaign of fear and consumption: problematizing gender-based marketing of weapons

This paper problematizes the fear-based marketing of guns and tasers to both men and women as a function of neoliberalism’s emphasis on consumption as the solution to social problems. Men are marketed dangerous weapons as a way to display their masculinity, while women are told that purchasing guns or tasers is one of the best ways to protect themselves from domestic violence and sexual assault. As the paper shows, that claim is in stark contrast to data about these phenomena, and yet such marketing is often taken as a common sense solution. In addition to detailing why such marketing of weapons is problematic, we offer several recommendations.     

Medical devices; exception from general requirements for informed consent. Interim final rule

The Food and Drug Administration (FDA) is issuing this interim final rule to amend its regulations to establish a new exception from the general requirements for informed consent, to permit the use of investigational in vitro diagnostic devices to identify chemical, biological, radiological, or nuclear agents without informed consent in certain circumstances. The agency is taking this action because it is concerned that, during a potential terrorism event or other potential public health emergency, delaying the testing of specimens to obtain informed consent may threaten the life of the subject. In many instances, there may also be others who have been exposed to, or who may be at risk of exposure to, a dangerous chemical, biological, radiological, or nuclear agent, thus necessitating identification of the agent as soon as possible. FDA is creating this exception to help ensure that individuals who may have been exposed to a chemical, biological, radiological, or nuclear agent are able to benefit from the timely use of the most appropriate diagnostic devices, including those that are investigational.     

检察机关法律监督职能的“表达”与“实践”——以宪法定位与实践的背离为视角

“检察机关是国家法律监督机关”的宪法定位与检察机关的法律监督实践存在较大差距和背离，这种背离现象引起了理论界关于检察制度的质疑牙口争论。导致法律监督职能“表达”与“实践”之间背离的原因是法律监督立法本身不协调、法律现代化转型过程中“移植法治”的路径造成检察制度多元混合体的弊端、制度变革中“立法推动主义”路径的局限以及检察基础理论研究的“内卷化”倾向等。“表达”与“实践”之间的背离对检察工作的影响是双重的，既可能引起理论争议从而削弱检察机关的权威，也可能促使检察机关采取推动法律监督立法、成立专门的诉讼监督机构等多种措施强化法律监督，以逐渐找回自身正当性的定位。