误读行政法及其对经济法的危害

控制行政权力和保护公民权利是行政法的应有之意,也是行政法为行政机关设定义务和责任的目的;但是,受近代德国和前苏联行政法的影响,中国行政法长期被误认为政府管理公民的工具。误读行政法不但混淆行政法和经济法的关系,而且造成人们对经济法的错误理解。     

From Cairo to Jerusalem: Law,Labour, Time and Catastrophe

Following the eclectic itineraries of ‘Near East’ expert, R. M. Graves, this article tells a story of an ongoing Nakba (catastrophe) of small and large legal decisions. Without reducing the human catastrophe of the event of the Nakba (the 1948 Palestinian forced exodus), it engages with it as a legal event that crosses (in this story at least) from Cairo to Jerusalem, from the League of Nations’ era (1920–1946) to the United Nations’ era (1945–), from the governance of labour and gender, to labour partition, and finally to the governance of municipalities through law and expertise. Graves’ relationship to both Cairo and Jerusalem was materialized through different forms of affective legal governance. Graves, who in his own dichotomous words was ‘neither a Zionist nor an anti-Semite’, managed Jerusalem across national lines in the wake of the UN Partition Plan (1947), and as the old empire was withdrawing right before Jerusalem itself became a site of the catastrophe—right before the Nakba.

     

Mental Disorder, Work Disability and the Law

R.J. Bonnie and J. Monahan, eds., Mental Disorder, Work Disability, and the Law (Chicago: University of Chicago Press, 1997): 321 pp.     

The Boycott of the Law and the Law of the Boycott: Law, Labour, and Politics in British Columbia

This article uses a critical theoryllegal mobilization perspective to study the 1987–92 trade union boycott of the British Columbia labour law. The problems encountered establishing a total boycott–one that would eschew all contact with the state–and the subsequent modification of the parameters of the boycott through a selective reliance on the law offer an important case from which to learn more about the role of law and legal rights in highly regulated organizations and how collectives mobilize the law. The author argues that legal rights are important to unions because of their ability to mediate the complexity of labour relations through a decentralization of authority. At the same time, mobilization of the law for this purpose accentuates localized identities and unequal resources that operate in tension with a boycott ethos, necessitating a deliberative politics to legitimize the law. By exploring the tension between these two forms of mobilization around law–one to reduce complexity, another to legitimize broad collective norms–the author analyzes and draws some conclusions about the reproduction of social unionism in British Columbia.     

构建和谐劳动关系与劳动法制建设

构建社会主义和谐社会已确定为我们党的治国方略,在构建和谐社会的实践中,必须构建和谐的劳动关系,要求进一步加强劳动法制。现仅就构建和谐劳动关系与健全劳动法制建设谈一些个人的看法。一、构建和谐社会是我国的奋斗纲领和目标自党的十六大响亮地提出“社会更加和谐”的口号     

Labour Law in a Service World

Drawing on the genealogy of the theoretical thought about services in economic and geographical economic literature, I argue in this article that in today's Service World it is highly important to develop an integrated approach that sees both consumption and production as impacting work relationships within legal thought. The current structure of labour law, which is based on the Fordist model of employment, is centred mainly on the production side, thus creating an incongruity between labour law and services. I propose thinking about work relations through a new framework –‘the nexus of service work’– that incorporates consumerism into the legal thought of work relationships, detaching it from the Fordist model of employment to achieve a more attuned approach to today's Service World.     

The Economic Sociology of Labour Law

Drawing on the work of Max Weber, this article considers the utility of an approach to the study of labour law, which it calls the economic sociology of labour law (ESLL). It identifies the contract for work as the key legal institution in the field, and the primary focus of scholarly analysis. Characterizing the act of contracting for work as an example of what Weber called economic social action oriented to the legal order, it proposes that Weber's notion of the labour constitution be used to map the context within which contracting for work takes place. And it argues that, in comparison to traditional socio‐legal approaches, ESLL has the significant advantage of allowing for account to be taken of the individual and commercial, as well as the social and legal, elements of contracting for work.     

Constitutionalizing Employment Relations: Sinzheimer, Kahn-Freund, and the Role of Labour Law

Hugo Sinzheimer and his one-time student Otto Kahn-Freund are widely regarded as the founding fathers of German and British labour law respectively. While, at first glance, the two scholars might appear to have advocated rather different approaches to the regulation of employment relations, a review of their work reveals that both argued, in essence, for the 'constitutionalization' of those relations. Both argued, in other words, for the removal from the economic sphere of the otherwise inequitable consequences of the functioning of private law, so that collectivized labour might participate with capital, on a parity basis, in the autonomous regulation of the economy.     

论农民工劳动权益保护与劳动法律的完善

当前农民工劳动权益遭受严重侵害,如就业壁垒、工资拖欠、社会保障虚无等。其原因既在于户籍制度,也在于立法执法,尤其是劳动立法存在很多不足。本文主要从完善农民工劳动合同管理、切实解决农民工工资拖欠等方面提出了立法改革建议。     

Labour Law 2008: 40 Years On

What has happened to British Labour Law over the past 40 years?It has become a larger more juridified subject. But its developmentrequires an understanding of the New Capitalism that has emerged,with capital more mobile and powerful in globalisation. Threeaspects are chosen for comment: First the meaning of the recentreview by the Law Lords of economic torts. Second, the argumentsabout the contract of employment in Britain and Italy, in thecontext of the regulation debate, forthcoming legislation andthe search for acceptable standards of social justice. Thirdly,the scene is set in European law for a new chapter in the tensionbetween employers' economic freedoms in the internal marketand social rights, including the right to strike.     

劳动刑法视野下劳动用工违法犯罪的惩治与预防机制对策

劳动用工违法犯罪的行为可以分为违法犯罪类型、单纯违法类型和模糊行为类型;劳动刑法应当以保障劳动密集型企业中底层劳动者的合法权益为重心,严厉惩治严重的劳动侵权犯罪;同时关注劳动者和用人单位双方利益的适度平衡;惩治和预防劳动用工违法犯罪,应当构建和完善劳动刑事处罚机制、宽严相济刑事政策机制、劳动法律体系衔接机制、司法协调救济机制等。     

Forced Marriage as a Harm in Domestic and International Law

This article reports on our analysis of 120 refugee cases from Australia, Canada, and Britain where an actual or threatened forced marriage was part of the claim for protection. We found that forced marriage was rarely considered by refugee decision makers to be a harm in and of itself. This finding contributes to understanding how gender and sexuality are analysed within refugee law, because the harm of forced marriage is experienced differently by lesbians, gay men and heterosexual women. We contrast our findings in the refugee case law with domestic initiatives in Europe aimed at protecting nationals from forced marriages both within Europe and elsewhere. We pay particular attention to British initiatives because they are in many ways the most far-reaching and innovative, and thus the contrast with the response of British refugee law is all the more stark.     

'Immunity', 'Privilege', and 'Right': British Trade Unions and the Language of Labour Law Reform

A continuing debate exists among labour lawyers in the United Kingdom as to the most appropriate legal framework for the regulation of collective industrial action. Many have argued that a change in legal form will not in itself afford greater protection to union activity. Through an analysis of the changing approach of the trade union movement to the issue of 'immunities' and 'rights' during the Thatcher period, this article seeks to demonstrate that adoption of the 'rights' discourse in fact offered considerable strategic advantages. In consequence, any analysis of this question should not overlook the significant political role played by language.