What the Cārvākas Originally Meant

This essay proposes to review the problems of reconstructing and interpreting ancient texts, particularly philosophical commentaries, in the context of the Cārvāka/Lokāyata system of India. Following an overview of the Indian philosophical text tradition and the ontological and epistemological positions of the Cārvākas, three cases are discussed: (1) when there is no invariance in the text and the commentary, (2) when commentators differ among themselves in their interpretations, and (3) when contradictory interpretations are offered. The paper further discusses why certain commentaries are to be treated as inconsistent with the base text and concludes that innovations inconsistent with the intention of the author should be treated differently from glosses that seek to explain the author’s original intentions.     

Supreme Court Elections: How Much They Have Changed,Why They Changed,and What Difference It Makes

This essay draws on four recent studies of elections to state supreme courts in the United States to probe widely perceived changes in the scale and content of electoral campaigns for seats on state supreme courts. 1 Evidence from these studies and other sources indicates that changes have indeed occurred, though they are more limited than most commentaries suggest. These changes stem most directly from trends in state supreme court policy that have attracted interest‐group activity, especially from the business community. Like their extent, the effects of change in supreme court campaigns have been meaningful although exaggerated by many observers. What we have learned about changes in supreme court elections has implications for choices among selection systems, but those implications are mixed and complex.     

Introduction: Commentaries on Ensuring Corporate Misconduct by Tom Baker and Sean J. Griffith

This essay reviews some of the more striking findings in Tom Baker and Sean J. Griffith's Ensuring Corporate Misconduct: How Liability Insurance Undermines Shareholder Litigation (2010), particularly concerning the tension between two competing narratives of shareholder litigation—one stressing the important deterrent effect of such litigation, the other viewing such litigation as abusive plaintiff opportunism. The essay then introduces commentaries on the book by Carol Heimer and Jodi Short, which follow.     

Capital punishment in Poland: The debate continues

Throughout its modern history, Poland has not escaped controversies surrounding the use of the death penalty. Tracing the historical development of laws dealing with the issue demonstrates an evolution influenced by various legal, political, social, philosophical, and international factors, leading up to the current absence of the penalty from the Polish legal system. The debate in society revolves around some stereotypical views held by different social groups. One of the biggest challenges is how to reconcile those views with empirical evidence, especially on issues like the deterrent effect of capital punishment. The authors describe the death penalty debate in Poland from these perspectives and take a retentionist position with regard to some selected crimes. As long as there are individuals willing to take other people's lives in a premeditated and deliberate manner demonstrating callous contempt for another person's existence, death remains the only punishment satisfying a sense of social justice and upholding the value of human life.     

关于西方刑法史研究的几个问题

中国近现代刑法是一个舶来品,因此,要使其真正本土化,让理论和实务各界真正熟悉它、理解它,并运用它来为新时期中国的社会发展服务,就必须进一步了解西方刑法的基本内容,了解西方刑法中各项理念和制度、原则的起源及其流变.然而,到目前为止,我国虽然已经出版了众多的刑法学著作和教科书,但关于西方刑法史研究的论著还非常少.因此,分四个部分对西方学术界关于刑法的定义、西方刑法的历史起源、近代西方刑法的变革、第二次世界大战后西方刑法的发展趋势作初步论述.     

On the Nihilist Interpretation of Madhyamaka

Madhyamaka philosophy has been frequently characterized as nihilism, not just by its Buddhist and non-Buddhist opponents, but also by some contemporary Buddhologists. This characterization might well strike us as surprising. First, nihilism appears to be straightforwardly inconsistent (“if there is nothing, there is still the fact that there is nothing, so there is something”). It would be curious if a philosophical school holding such an obviously deficient view would have acquired the kind of importance Madhyamaka has acquired in the Asian intellectual landscape over the last two millenia. Second, Madhyamaka by its very name proclaims to tread the “middle way”, and what if anything would count as an extreme position but the view that there is nothing? This essay addresses both the systematic status of nihilist theories as well as the historical contexts in which Madhyamaka has been characterized as nihilistic, aiming to throw some light on plausible and implausible ways of understanding the Madhyamaka intellectual enterprise.     

Positivism, Idealism and the Rule of Law

The modern lawyer operates within a conception of law as a bodyof rules. To confront the law of contract, of torts, or of property,is to familiarize oneself with an intricate set of rules. Suchfamiliarity is not yet legal scholarship, much less legal practice.For in order to use the rules as lawyers use them, the rulesmust be contemplated and considered, and the relationship betweenthe different rules must be understood. Because the intellectualprocesses involved in handling the rules exhibit a high degreeof sophistication, those intellectual processes may themselvesbecome the subject matter of philosophical argument. Thus wemay regard jurisprudential theories as embodying differing understandingsof the processes of handling legal rules; and we may conceiveof legal theory as the attempt to grasp the moral significanceof rules as a foundation for social order. This essay shalloffer some thoughts on the relationship between the rule oflaw, considered as a moral ideal, and the notion of rules asthe principal means by which legal order is manifested.     

From Betrayal to Violence: Dante's Inferno and the Social Construction of Crime

This essay reflects on contemporary justifications for the grading of crimes, especially the conception that the gravity of crimes is rooted in "desert," understood to depend particularly on the offender's state of mind and to a lesser extent on the harm done or threatened to society.
Drawing on Dante's Inferno, the essay shows how the gravity of crimes is socially constructed. For reasons rooted in the sociopolitical forces, as well as the philosophy and law of his day, Dante found the crimes most deserving of punishment to be those of betrayal of trust. He conceived such crimes to be the most deliberate and to do the most damage to the social fabric. Contemporary law has found that crimes of betrayal are generally less deserving of punishment than crimes of violence; the essay shows how social and historical forces, including even the traditions upon which Dante drew, have shaped this choice. In the course of grading crimes in this way, the law has altered its conceptions of "intent" as well as of harm to society so radically that the notion of "desert" has lost much of its coherence. The importance of trust in modern society, moreover, has been misunderstood in the contemporary grading of crimes.     

A Realist View of Hindu Law

Abstract. Hindu law represents one of the least known, yet most sophisticated traditions of legal theory and jurisprudence in world history. Hindu jurisprudential texts contain elaborate and careful philosophical reflections on the nature of law and religion. The nature of Hindu law as a tradition has been subject to some debate and some misunderstanding both within and especially outside of specialist circles. The present essay utilizes the familiar framework of legal realism to describe the fundamental concepts of law and legal procedure in Hindu jurisprudence. Questions about the place of natural law theory and legal positivism in relation to Hindu law are also considered.     

吴伟业诗歌创作与《周易》的“一与多”

“一与多”是在《周易》、《老子》等典籍中被总结出来的对立统一的范畴。受到这种传统尤其是《易》学名家黄道周的影响，吴伟业往往沿着“一与多”的思路进行诗歌创作，这在《圆圆曲》等作品中表现得尤为突出。     

Some Remarks on Criminology and Moral Philosophy

Recent developments in philosophy and in criminology indicate that there are significant respects in which the two disciplines can be mutually informing. Many philosophers are increasingly interested in exploring empirical aspects of philosophical claims, and criminologists are finding their way past the alleged fact/value distinction and are rediscovering the moral significance of facts, especially regarding punishment and desistance. In some recent criminological studies there are implicit links to the British moralists such as David Hume and Adam Smith, and to Aristotle as well. This paper explicates those links and some of the possibilities for philosophy and criminology to be mutually informing.     

Principles,Passions, and the Paradox of Modern Law: A Comment on Bybee

In All Judges Are Political—Except When They Are Not: Acceptable Hypocrisies and the Rule of Law ( 2010 ), Keith Bybee considers the hypocrisy of modern law—that is, the widespread view that judges are both principled and partisan—by drawing an analogy with courtesy. Both law and courtesy contain and manage the diverse and potentially divisive interests that would, were they not contained, disrupt social life. In this essay I extend this argument by considering whether the relationship between law and courtesy is more than merely analogical. I suggest that both systems are aspects of larger historical developments out of which emerged the modern subject and the modern state, creating a social world made up of apparently bounded individuals and institutions. As such, law and courtesy do more than conceal and contain interests and subjectivity; they produce the unruly, partisan subjects they are designed to manage.     

"三个代表":历史唯物主义的与时俱进

“三个代表”重要思想的哲学基础是历史唯物主义,是当代中国共产党人对历史唯物主义的创造性运用和发展。生产力是社会发展最终决定力量,代表先进生产力,是“三个代表”的基础条件、根本力量。发展生产力是“社会主义根本任务”。社会发展是全面的,在注重物质文明建设、坚持生产力标准的同时,也要注重精神文明建设。中国特色的社会主义,需要先进的生产力,也需要先进的文化。人民群众既是先进生产力和先进文化的创造者,又是其享有者。实现最广大人民群众根本利益是发展先进生产力和先进文化的目的和归宿。“三个代表”是一个统一整体,相互联系、相互促进。“三个代表”是历史唯物主义的与时俱进。     

Piercing the Family's Private Veil: Family Violence, International Human Rights, and the Cross-Cultural Record

International law does not take family violence seriously enough. Although reviews and commentaries of international law regularly ignore family violence, such violence increasingly becomes a central concern of modern international treaties and plans of action. This article details how international law, which still tends to limit itself to inter-state behavior, seeks to transform local cultural practices and forms of interpersonal relations that lead to family violence. Although these developments largely remain in their infancy, the article proposes that international human rights developments are both legitimate and necessary.     

The Relationship Between the bhāvas and the pratyayasarga in Classical Sāṃkhya

The relationship between the two classical Sā?khya paradigms of the conditions (bhāva) and the intellectual creation (pratyayasarga) has been a matter of debate since the early days of modern Indology. The precise role of each of these paradigms in the broader Sā?khya system, as well as the relationship between them, is unclear from the text of ī?varak???a’s Sā?khyakārikā, and most of the classical commentaries on this text offer little clarification. Of these commentaries, the anonymous Yuktidīpikā provides the most detailed and extensive information on many philosophical issues, including the nature of the bhāvas and the pratyayasarga. This article aims to show that previous attempts by scholars to explain the relationship between these two paradigms have not taken the evidence of the Yuktidīpikā fully into account, and to reconstruct a more adequate understanding on the basis of this evidence.     

Law, Religion, and "Public Health" in the Republic of Brazil

The essay evaluates the general problem that, while most modern republican constitutions follow the U.S. and French models in declaring religious freedom, absolute religious freedom is impossible and undesirable. How are religious freedoms constrained, and how much should they be? The essay evaluates the strategies by which limitations on freedoms of religion are constructed and imposed, especially the powerful isomorphism of law and science described by Boaventura de Sousa Santos. Taking the example of Afro‐Brazilian religions in relation to the Brazilian state since 1890, post‐emancipation, the essay argues that pseudo‐scientific discourses of “public health” constrained the religious practice of former slaves, thus allowing the trompel'oeil of religious freedom to continue in the new republic, even as freedoms were in fact constrained by the state.     

Hart's Jurisprodence: Its relation to Philosophy

The essay concerns the way jurisprudence adapts to the challanges set by contemporary philosophy concentarting upon the case of Hart"s legal theory. Hart produced one paradigm of linking philosphical considerations to jurisprudential analyses. He seemed to believe that the investigation of legal phenomena must itself raise and answer the underlying philosophical questions (only occasionally relying on philosophical sources). Although Hart was well aware of the rising new philosophy of his time, he sought to elaborate an autonomus conceptual framework for philosophical jurisprudence. The essay often takes Wittgenstein as an example for elucaidating Hart"s relation to philosophy (although critizing those who believe that Hart"s is a key figure in the jurisprudential reception of Wittgenstein"s later philosophy). The essayjustifies Hart"s claim to gain theoretical autonomy but points to three mistakes in that prespect. (1) He sometimes misconcieved his philodophical sources owing to the fact that he refrained from analyzing them. (2) Hart justified some of his crucial claims by a combination of arguments that is not entirely consistent. (3) His standpoint often raised philosophical issues but sometimes failed to make an identifiable point upon them. The essay concludes that Hart was right in thinking that the time had come to reconsider the conditions of making theories about law but he couild not justify his assumption that the reconsideration would lead to certain kind of comprehensive theory of law.     

Crime,Justice, and the Under‐Laborer: On the Criminology of the Shadow and the Search for Disciplinary Identity and Legitimacy

This article proposes an alternative vision for what criminal justice can represent such that its interests in becoming a full‐fledged academic discipline are advanced. Linked to philosophical inquiry (the under‐laborer), emphasis is placed on explicating how insights derived from ontology, epistemology, aesthetics, and ethics underscore the field. Coupled with this more probing excursion is psychoanalytic reflexivity (the criminology of the shadow). The manner in which the philosophical lens informs criminal justice is delineated, and the logic of this shadow criminology is described. As dimensions of an inclusive organizing scheme, their potential for fostering integration in crime and justice studies consistent with the goals of disciplinary identity and legitimacy is explored. The implications of the proposed model—especially for charting a new direction in theory, research, policy, and pedagogy—are also highlighted.     

法院制度功能之比较研究

法院制度之功能经历了历史演化 ,尤其是近现代以来 ,现代法院的地位、作用和传统法院相比较 ,有更加明显的变化。本文运用结构———功能的方法探析了现代法院制度和传统法院制度的异同 ,指出两种类型的法院制度在纠纷解决这一直接功能和社会控制、权力制约、形成公共政策等延伸性功能方面表现出来的变化 ,值得关注研究。