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1.
Helen Stacy 《Critical Criminology》1995,6(2):63-71
The ability of Australia's indigenous people to create their own cultural identity and social reality is shaped profoundly
by the Australian legal system in various ways. The 1992Mabo decision of the Australian High Court ‘created’ a right to land tenure for Australia's indigenous people. This ‘right’ has
been further explicated by federal legislation in the post-Mabo era, in and around law. This essay analyzes the 1992Mabo decision in the context of governmental, judicial and wider social responses to indigenous issues. At several sites, it examines
‘indigenous rights’ discourse to illustrate the shifting meaning of ‘rights’ in legal currency in the indigenous debate. The
essay suggests that the ‘rights’ discourse of legal liberalism has not yet provided meaningful plurality in the recognition
of indigenous rights. 相似文献
2.
Markus Gunneflo 《Law and Critique》2012,23(1):67-82
The targeted killing judgment of the Israeli Supreme Court has, since it was handed down in December 2006, received a significant
amount of attention: praise as well as criticism. Offering neither praise nor criticism, the present article is instead an
attempt at a ‘critique’ of the judgment drawing on the German-Jewish philosopher Walter Benjamin’s famous essay from 1921,
‘Critique of Violence’. The article focuses on a key aspect of Benjamin’s critique: the distinction between the two modalities
of ‘legal violence’—lawmaking or foundational violence and law-preserving or administrative violence. Analysing the fact that
the Court exercises jurisdiction over these killings in the first place, the decision on the applicable law as well as the
interpretation of that law, the article finds that the targeted killing judgment collapses this distinction in a different
way from that foreseen by Benjamin. Hence, the article argues, the targeted killing judgment is best understood as a form
of administrative foundational violence. In conclusion Judith Butler’s reading of Benjamin’s notion of ‘divine violence’ is
considered, particularly his use of the commandment, ‘thou shalt not kill’, as a non-violent violence that must be waged against
the kind of legal violence of which the targeted killing judgment is exemplary. 相似文献
3.
Nathan Harvill 《International Journal for the Semiotics of Law》2010,23(1):49-60
This paper applies semiotic analysis to issues arising from the recent Supreme Court decision of Kelo v. City of New London [545 U.S.469] (2005). The author uses the tools of semiotics to explore the evolution of language and speech and their relationship
to the terms, “private property” and “public use” as used by the Supreme Court and the general public in the years leading
up to the Kelo decision. This paper will first provide an overview of the field of semiotics, describing the prevailing thought and the
methods utilized by semioticians to find meaning. Second, the tools of semiotics will be applied to Supreme Court cases, beginning
with Bauman v. Ross [167 U.S. 548] (1897) and continuing to Kelo v. City of New London. Utilizing these tools, the author will show how, within the span of approximately 100 years, the speech of the court has
affected the language of legal discourse. The signs to which both Bauman and Kelo seek to attach meaning are found in the Fifth Amendment to the US Constitution, which provides, in relevant part, “…nor shall
private property be taken for public use, without just compensation.”(emphasis added) (U.S. Const. Amendment 5). This dialectic activity resulted in the development of two different languages. One was used by the layperson, whereas
the other was found in relevant legal/political institutions such as the US Supreme Court. This paper will focus on the fundamental
change in the meaning of the sign/expression “public use.” 相似文献
4.
William Pencak 《International Journal for the Semiotics of Law》2009,22(1):69-82
Both the Kevelson Seminar topic, ‘Lawyers as Makers of Meaning,’ and the appearance of a highly-publicized television series
in the United States dedicated to the life of President John Adams (1735–1826) invite inquiry into Adams’ role as a lawyer
who shaped the meaning of the American Revolution (and his role in bringing it about). Three trials from Adams’ early legal
career illustrate that he presented both himself and fellow resistance leader James Otis, Jr., as heroic loners struggling
for the rights of Americans against British injustice. Although he did not call it that, in 1970 lawyer and future Massachusetts
Superior Court Justice Hiller Zobel, in his book The Boston Massacre, undertook what we would consider a semiotic approach that investigated the relevant codes and contexts—both the legal complexities
and the audiences, other lawyers, judges, and posterity about which Adams spoke, simplifying and minimizing their roles as
he maximized his own (and Otis’s). Zobel’s own relationship with Adams’ legal career appeared in his own tenure on the bench,
especially in the famous ‘Nanny’ (discussed by Denis Brion, in this issue) case in which he explicitly presented the Boston
Massacre Trials as a relevant precedent. Despite Adams’ willingness to subordinate his clients’ welfare to the patriot cause
early in his career, it can be argued that HBO television and historian David McCullough, by presenting him to the public
only flawed by his outspoken, stubborn honesty, have nevertheless performed a public service. Their version of Adams offers
Americans in the twenty-first century an alternative role model to the dishonest, ill-informed politicians who use public
opinion polls rather than political theory, moral philosophy, and historical knowledge as the basis of their decisions. 相似文献
5.
Daniel McLoughlin 《Law and Critique》2009,20(3):245-257
In Homo Sacer, Giorgio Agamben makes the claim that Kant’s moral philosophy is prophetic of legal nihilism and modern totalitarianism.
In doing so, he draws an implicit parallel between Kantian ethics of respect and autonomy, and the authoritarian constitutional
theory of Carl Schmitt. This paper elucidates and evaluates this claim through an analysis of Agamben’s assertion that the
legal condition of modernity is a nihilistic law that is ‘in force without significance’. I argue that the theoretical continuity
between totalitarianism and the Moral Law is the problem of the undecidable, which arises when the empty ground of normative
judgment comes to light. 相似文献
6.
Sukhninder Panesar 《Liverpool Law Review》2010,31(3):259-272
Writing extra-judicially, Sir Robert Walker once commented that ‘the decision in Re Hastings-Bass must be seen in its judicial context. It cannot be regarded as giving a “carte blanche” excuse to every body of trustees
who have made a mistake. The law on the issue now stands in a state of some uncertainty’ (Walker, The limits of the principle
in Re Hastings-Bass, P.C.B 226, 2002). There is no doubt in the minds of most commentators and, indeed those persons seeking to invoke the rule in Re Hastings-Bass on behalf of their clients, that much clarification is needed as to the proper scope of the rule. Recent judicial trends
suggest that, not only is the rule in Hastings-Bass being applied at such an unprecedented rate with very little scrutiny from a court beyond that of the High Court, it is also
showing signs of plaguing the wider fiduciary community. As the opportunity for the Court of Appeal, and indeed the Supreme
Court, to exercise some judicial scrutiny of the rule may not be that far away, this article highlights some of the present
uncertainties with the rule in Re Hastings-Bass. 相似文献
7.
Uladzislau Belavusau 《International Journal for the Semiotics of Law》2010,23(2):165-183
The article is the author’s endeavor to reconstruct the semiotic conflict in the transatlantic legal appraisal of hate speech
(between the USA and Europe) through Ancient Greek concepts of παρρησία (parrhēsia) and ισηγορία (isēgoria). The US Supreme Court case law on the First Amendment to American Constitution is, therefore, counter-balanced vis-à-vis la jurisprudence de Strasbourg on Article 10 of the European Convention of Human Rights. The author suggests that an adequate comprehension of the contemporary
constitutional concepts of the right to free speech in Western democracies is deceptive without a thorough analysis of its
genealogy in the Ancient rhetorical cradle. 相似文献
8.
Based on past court practices, the Supreme Court of China promulgated the Interpretation of the Supreme Court concerning Some
Issues on Application of the Arbitration Law of the People’s Republic of China, which is in line with the international trend
of justice-arbitration relationship and reflects the pro-arbitration idea, as well as making a new step forward in the evolution
of China’s judicial intendance over arbitration. However, confined by current legislation and due to inadequate judicial experiences,
some problems still remain in the judicial intendance mechanism for further solution.
Yu Xifu, Ph.D, is a judge dealing with most maritime and foreign-related commercial cases. His research is focused on international
private law, especially international commercial arbitration. His works include a monograph, i.e. Judicial Intendance and Assistance in International Commercial Arbitration; And some articles, i.e. The relation between adjudication and arbitration, The definition and legal meaning of the place of arbitration, The choice-of-law
of negotiable instrument, Finding foreign law-difficulties and way-out. 相似文献
9.
Jeffrey A. Ellsworth 《International Journal for the Semiotics of Law》2009,22(1):105-122
The author attempts to apply semiotic analysis to a question of family law. By examining the language used by the Supreme
Court in the title case, Michael H. v. Gerald D., along with the case briefs, lower court opinions, other Supreme Court cases and prior legal scholarship, the author attempts
to determine the requisite relationships between father–child and father–mother in order for a legal tie to exist between
a father and his biological child. The author tries to not only determine the necessary circumstances but also the political
ideology that distinguishes these familial ties. The author further attempts to analyze the goals of these underlying political
ideologies. 相似文献
10.
Paul Johnson 《Law and Critique》2012,23(1):43-66
This article examines a recent judgment by the European Court of Human Rights (E.B. v France) that upheld the complaint of a homosexual woman who alleged that her application for authorization to adopt a child had
been refused by domestic French authorities on the grounds of her sexual orientation. I argue that the judgment constitutes
an innovative and atypical legal consideration of, and challenge to, the heteronormative social relations of contemporary
European societies. After exploring the evidence presented by the applicant, and the Court’s interpretation of it, I argue
that in order to reach its judgment it was necessary for the Court to make a significant departure from its established jurisprudence
in relation to sexual orientation. An essential element of this involved the adoption of a distinctive critical approach,
strongly resonant with aspects of ‘queer theory’, which focused attention on the social, cultural and political construction
of normative heterosexuality. Whilst a number of commentators have assessed the importance of the judgment in terms of its
evolution of ‘gay rights’ in the area of family life, I argue that the Court’s reconceptualized ‘theoretical’ understanding
of, and critical approach to, heteronormativity offers the potential to expand the scope of the European Convention on Human
Rights across a number of areas of social life—in marriage, public assembly, freedom of expression, as well as family life—where
non-heterosexuals continue to face discrimination in contemporary Europe. 相似文献
11.
Through two case studies, this essay examines the relationship between the operation and practice of law in Aotearoa New Zealand and the naming of the ‘unlawful’, ‘uncivil’ or ‘disorderly’ within a colonial context. Against the background of the apparent complicity between law and colonial interest and desire in Aotearoa, I argue
that, in both the ‘Haka Party’ case (1979) and Mair v Wanganui City Council (1996), the acts of the defendants draw attention to the relationship between the authority of the law and the repression
or exclusion of difference. According to the judges in both cases, the dictates of Maori law and custom were in conflict with the principles of ‘law and order’. Read in terms of colonial relations, the perceived relationship
between Maori law and custom and the threat to ‘civilization’, law and order reveals the way in which ‘the law’ has operated
in a culturally biased manner and has reflected the interests of Pakeha (New Zealanders of European descent). Thus, the perceived threat of the challenge made to the law in either case can be seen
as the threat to reveal it for what it is, to expose the violence that maintains it, and thus to open a space for critique.
Perhaps more powerfully than any physical attack on the system itself, these acts which expose the law challenge it in the
name of justice, making it possible for the law to be seen both as a reflection of a particular cultural interest and hence as co-opt-able,
takeable and able to be made to serve another end, that of the other in the name of justice.
This revised version was published online in July 2006 with corrections to the Cover Date. 相似文献
12.
Jeanne L. Schroeder 《Law and Critique》2007,18(1):117-142
H.L.A. Hart’s jurisprudence seems antithetical to Jacques Lacan’s psychoanalysis. Professor Schroeder argues that, in fact,
Hart’s concept of law has surprising similarities to Lacan’s ‘discourse of the Master’. Both reject a command theory of law:
subjects do not obey law out of fear. Moreover, both insist that the authority of law is completely independent from its content.
Anyone seeking to develop a psychoanalytically sophisticated critical legal theory should reconsider Hart. As insightful as
his concept of the symbolic is, Lacan has no expertise in legal systems and does not discuss positive law per se. Although he posited a theory of ethics in his Seventh Seminar and the seeds of a jurisprudence are implicit within his theory,
he offers no account of legal right, justice or what Hart misleadingly calls ‘morality’. A Lacanian jurisprudence must, therefore,
be supplemented by other sources.
Moreover, legal positivists should not dismiss psychoanalysis. As insightful as Hart’s jurisprudence is, his theories of legal
subjectivity and linguistics are simplistic and his concept of law too narrow. He describes only one aspect of legal experience:
obedience to law. He ignores what most legal actors do: Hart’s concept of law excludes the practice of law. Although Lacan’s ‘master’s discourse’ surprisingly parallels Hart’s jurisprudence, Lacan does not restrict the symbolic
to the master’s discourse. It requires three other ‘discourses’. Lacan, therefore, supplements Hart. Specifically, Lacan’s
fourth discourse describes the excluded practice of law and provides the mechanism by which ‘morality’ can critique law.
相似文献
Jeanne L. SchroederEmail: |
13.
Shibing Cao 《Frontiers of Law in China》2008,3(1):1-14
The decisions and the legislative interpretations of judicial interpretations of the Supreme Court of China can be considered
as a part of Mainland China’s customary law, and carried by decisions and judicial interpretations. Customary law is the very
source of its normal force and they are supposed to be an informal source of the law for they have the required characteristics
for substantiating customary law. Accordingly, the legislative judicial interpretations and decisions of the Supreme Court
that are qualified to be promulgated in the Gazette of the Supreme Court should be standardized by the requisites of customary
law and have the quality supposed to be universally fair.
Cao Shibing is a senior judge of the Supreme Court of China majoring in civil law, and he was awarded the doctorate of law
by the Chinese Academy of Social Sciences. Till now, he has published an amount of academic works, for instance, On Anti-monopoly Law (1996), Resolve of the Problems in the Suretyship Law of China and its Prospect (2001), On Insolvency Law of China (2003), and his translated book in Chinese (1998) —The Death of Contract (originally written by Grant Gilmore in 1995). 相似文献
14.
In R (on the application of Friends of the Earth Ltd and others) v Heathrow Airport Ltd the UK Supreme Court allowed an appeal against the Court of Appeal's decision that there had been a series of legal errors in the designation of the Airport National Policy Statement. This case note analyses the case from an ‘internal’ doctrinal perspective and argues that the Supreme Court could have engaged more explicitly with the legal issues that arise from climate change legislation for administrative law adjudication. For courts to adjudicate well in such circumstances they need to be prepared to develop administrative law doctrine, particularly in light of the issues of integrating climate change into public decision-making and of scientific/policy uncertainty which lie in the background of climate change legislation. 相似文献
15.
In Simón, the Argentine Supreme Court held that two amnestylaws, adopted in the late 1980s in order to shield authors ofserious human rights violations committed during the so-calledDirty War (19761983), were unconstitutionaland void. Although the Argentine Congress had already repealedthe two laws in 2003, uncertainty about the validity of thisparliamentary decision had led to some controversy. With itsdecision in Simón, the Supreme Court puts an end to thelegal uncertainty concerning the prosecution of serious humanrights violations committed under the military regime and definitivelyclears the path for judicial actions against their authors.Setting aside deeply rooted national legal principles such as statutory limitations, the principle of legality andamnesties the Argentine Supreme Court has confirmedthe role of human rights principles and of public internationallaw in general in dealing with the most heinous crimes againsthumanity. 相似文献
16.
Leong Susanna H. S.; Saw Cheng Lim 《International Journal of Law and Information Technology》2007,15(1):38-53
The recent decision of the Supreme Court of Canada in Societyof Composers, Authors and Music Publishers of Canada v CanadianAssociation of Internet Providers [2004] 2 SCR 427 is significantfor two reasons: (a) the Canadian Supreme Court held that InternetService Providers should be exempted from copyright liabilityas long as they provide only a conduit service in transmittingcopyright materials between Internet users (a point which isconsistent with many national copyright laws); (b) the majorityof the Canadian Supreme Court arrived at the conclusion thatthe appropriate test to determine whether an infringement forthe unauthorized transmission of online copyright material hasoccurred within the Canadian jurisdiction is the realand substantial connection test (LeBel J, however, dissentedand was of the view that the correct test to apply is the hostserver test). This paper studies these two tests as propoundedby the Canadian Supreme Court and assesses their strengths andweaknesses, especially in light of the territoriality principlein copyright law. 相似文献
17.
Tom Frost 《Liverpool Law Review》2013,34(1):75-89
This article considers the United States Supreme Court’s ruling in National Federation of Independent Business et al v Sebelius, which questioned the constitutionality of President Obama’s signature healthcare reforms of 2009, which have become colloquially known as ‘Obamacare’. Although the Supreme Court upheld the Act as constitutional, this article contends that the Supreme Court’s reasoning can be read as another battle in the long-standing debate in American politics over the correct size and limits of the Federal Government. In upholding the healthcare reforms as a tax, rather than under the Constitution’s Commerce Clause, the Supreme Court has endorsed a view of limited government in line with the principles of classical liberalism. This has the potential to greatly restrict the scope of the Federal Government to pursue large scale expansive social welfare programmes in the future. 相似文献
18.
Mohammad Mazher Idriss 《Liverpool Law Review》2006,27(3):417-436
The Court of Appeal last year delivered a well-publicised judgment declaring that now 17-year-old Shabina Begum had been unlawfully
excluded from Denbigh High School when she insisted on wearing the Islamic ‘jilbab’ ([2005] EWCA Civ. 199; [2005] 1 W.L.R.
3372; [2005] 2 All E.R. 396 (Judgment of 2 March 2005); The Times, 4 March 2005, at p. 85. See also J. Gau, “Muslim Dress – School Exclusion – Human Rights”, Ecclesiastical Law Journal 8/37 (2005), pp. 239–240.). The dispute received huge national and international press coverage, but on Wednesday 22nd March
2006, in a remarkable u-turn, the House of Lords overturned the Court of Appeal’s decision on all counts (R (On the Application
of Begum) v Headteacher and Governors of Denbigh High School [2006] UKHL 15 (Judgment of 22 March 2006); The Guardian, 23 March 2006, at p. 6; and The Independent, 23 March 2006, at p. 4. Members of the Appellate Committee were Lord Bingham of Cornhill; Lord Nicholls of Birkenhead; Lord
Hoffmann; Lord Scott of Foscote and Baroness Hale of Richmond.). The reversal meant Shabina’s Article 9 right to manifest
a belief had not been violated by the school. This analysis will briefly examine the reasoning behind their Lordship’s judgment
and will provide a short commentary on the likely effect the decision will have on religious groups wishing to wear religious
symbols in UK schools.
LLB (Hons), LLM, Cert. Ed. Mohammad Idriss is Senior Lecturer in Public Law at Coventry University, United Kingdom and is
a PhD Candidate at the University of Birmingham; M.Idriss@Coventry.ac.uk 相似文献
19.
George Larry Mays 《American Journal of Criminal Justice》1979,4(2):39-54
The American juvenile court is in a state of legal flux. From its informal beginning in English chancery law, to its formal
inception in the United States in 1899, the court has been exposed to a number of diverse, competing pressures.
Since the Supreme Court case of In re Gault in the mid-1960’s, the whole underpinnings of the juvenile court have been so
shaken that one must now ask whether or not the last vestiges of parens patriae have been swept away. If this is indeed the
case, America should now seek alternatives to the present system of juvenile adjudication —for the sake of the child and for
the sake of justice. 相似文献
20.
Jessica Whyte 《Law and Critique》2009,20(3):309-324
In Homo Sacer, Giorgio Agamben suggests that Herman’s Melville’s ‘Bartleby the Scrivener’ offers the ‘strongest objection against the principle
of sovereignty’. Bartleby, a legal scribe who does not write, is best known for the formula with which he responds to all
his employer’s requests, ‘I would prefer not to.’ This paper examines this formula, asking what it would mean to ‘prefer not
to’ when the law is in question. By reading Melville’s story alongside Aristotle’s theory of potentiality and Walter Benjamin’s
theses on history, it suggests that Bartleby’s interest, for Agamben, lies in his challenge to dominant conceptions of the
relation between potentiality and actuality, which, he believes, are rendered indistinct in sovereignty. By reflecting critically
on Agamben’s depiction of Bartleby as a ‘new Messiah’, this paper examines Agamben’s understanding of what it would mean to
fulfil the law, and what form of political task this would entail. 相似文献