认识全球化的"问题化"进路——对中国法学"全球化论辩"中理论问题的追究与开放

对全球化本身做"问题化"理论处理首先便要求对中国法学的"全球化论辩"进行分析和反思,因此在本文中,我首先把中国法学之"全球化论辩"的"四步骤套路"转换成了一种参照性背景;其次通过把"全球化是经济全球化还是多维度的全球化"与"法律全球化"这两个问题转变成了对具体问题的分析进路,对中国法学的"全球化论辩"进行一般性的厘清和分析:在对中国法学两种对立的全球化论说的分析中,我批判了那种"经济主义"的全球化论说,认为全球化是一个多维度的既依凭民族国家又脱离民族国家的社会变迁过程;同时,本文也分析了与上述两种全球化学说紧密联系的中国法学学者有关"法律全球化"争辩之"肯定"、"否定"和"折衷主义"三种观点及其背后不同的理据。     

Offender Theme Analyses in a Crime Narrative: An Applied Approach

There is a great deal of research on the structure of narrative and its mode, and on the narrative positioning and counter positioning of the actor in legal and social contexts. In offender narratives, personal experiences are embedded for observation and analysis of particular realities that contextualize a disposition of the perpetrator being ‘an undergoer’ rather than an ‘effector’ of actions. This is evaluated in the shift from a narrated action to a speaker utterance in prospection and also in anticipation of the criminal act. Using ‘grammatical logic’, it is also possible to demonstrate how the crucial event (the crime) is not a cause, but an effect of a personal theme that encapsulates pattern of circumstances when the narrative outcome in criminal narrative becomes the product of its discursive practices. This is the ‘story of intentionality’ (my term) in crime narratives, characteristically embedded within the 1st the story of crime, the 2nd is the story of investigation [14, 20]. Using techniques from functional grammar and critical stylistics for discourse analysis, I intend to show an effective approach for the search of offender theme that underlies an act of crime. These disciplines provide the analyst with the linguistic material to analyse intersentential cohesion in a chain of semantically linked sentences (in written or spoken discourse) that explore the ways in which things are ‘made to look’ in the structure and functions of the English language. As a case study, I am using an offender narrative from Tony Parker’s book Life After Life: Interviews with Twelve Murderers (1990) showing an effective approach for the search of personal themes underlying the act of crime. Offender theme analyses are also valuable for evaluating the changing nature or development of offender characteristics pre or post crime.     

Liberal Rights versus Islamic Law? The Construction of a Binary in Malaysian Politics

Why are liberal rights and Islamic law understood in binary and exclusivist terms at some moments, but not others? In this study, I trace when, why, and how an Islamic law versus liberal rights binary emerged in Malaysian political discourse and popular legal consciousness. I find that Malaysian legal institutions were hardwired to produce vexing legal questions, which competing groups of activists transformed into compelling narratives of injustice. By tracing the development of this spectacle in the courtroom and beyond, I show how the dueling binaries of liberal rights versus Islamic law, individual rights versus collective rights, and secularism versus religion were contingent on institutional design and political agency, rather than irreconcilable tensions between liberal rights and the Islamic legal tradition in some intrinsic sense. More broadly, the research contributes to our understanding of how popular legal consciousness is shaped by legal mobilization and countermobilization beyond the court of law.     

法律发展与法律知识化

法律发展首先必须面对合法化与价值诉求问题，而这一切又无不与作为基础的法律主体的知识立场密切相关。如何谋求“法律知识化”、话语合法化以及法律主体的价值立场的有效运作，是法律文明、有效发展的必要途径，也是法律发展话语摒弃规则主义弊端制约而建构自我所不可回避的挑战。从西方国家的经验看，现代法治的确立与以理性化为核心的法律知识化过程密不可分，法律知识化由知识对法律的关系提升、扩展为一种法律观，再由一种法律观落实为一种价值观、方法论，并由此引导法律主体追求和建设一种新的法律文明。更为重要的是，“法律知识化”使法治成为近代法律发展的本质性，把知识化原则导入法律发展领域，从而实现了法律发展的革命性变革。     

“推定”和“视为”之语词解读?——以我国现行民事法律规范为样本

立法层面观察,"推定"和"视为"语词频繁适用于我国法律规范中。学界和实务界普遍认为两语词表达的分别是法律推定和法律拟制制度。然而,以我国现行民事法律规范为样本进行分析,却发现"推定"和"视为"语词并非与法律推定和法律拟制相对应:"推定"大多表达法律推定,但也表达法律拟制和注意规定;"视为"大多表达法律拟制,但也表达推定制度和注意规定。立法层面法律推定、法律拟制和注意规定语词适用的混乱状态必将导致司法层面对于"推定"和"视为"语词的解读困境。因此,应当在厘清法律推定、法律拟制和注意规定本质的基础上,用统一、明确的语词进行相应的制度表达。     

The Impact of Transformations in National Cultural Identity upon Competing Constitutional Narratives in the United States of America

Shifts in the national cultural identity of the US have been reflected in shifts in the US?? dominant constitutional narratives. For the United States, ??inter-legality?? has been less a matter of dealing with alternative non-state legal narratives than of contending with constantly arising and competing narratives about the ??correct?? nature of the ??official?? legal order of the state. The US Supreme Court has claimed to have the ??last word?? in resolving these arguments but because that Court is so often sharply divided and because the Court membership and the nature of its ??last words?? changes so often, where a significant element of the society seeks to advance its ideas and interests, it will often do so in legal and constitutional terms. As the national culture undergoes changes, a competing constitutional narrative may gain ground and even ultimately prevail, at least for a time, and achieve Supreme Court ??endorsement?? for its claims.     

Rights, Performatives, and Promises in Karl Olivecrona's Legal Theory

Abstract.  Karl Olivecrona (1971 ) maintains that "right" is a "hollow word," and so also for some other legal terms. "Right," he says, "has no conceptual background." He arrives at this position after an examination of metaphysical and naturalistic accounts, including American legal realism. Some of Olivecrona's arguments will be evaluated here. His position is influenced by Hägerström's theory of legal language, but he argues that Hägerström fails to account for how such terms as "right,""duty," etc. function in legal discourse and why they are useful. A parallel approach is also found in Olivecrona's book The Problem of the Monetary Unit (1957 ). Olivecrona is left with the problem of how such "hollow" terms function. His explanation is largely psychological. Going beyond J. L. Austin's notion of performatory language, he introduces the idea of performatory imperatives. I propose to submit Olivecrona's approach to a critical examination. It is suggested that had he started from everyday, nonlegal promises and commitments he might well have ended up with a different theory of legal language.     

Critical Remarks on Robert Alexy's "Special-Case Thesis"*

Abstract
In this paper the author criticizes the way Robert Alexy reconstructs the relationship between legal and practical reasoning. The core of Alexy's argumentation (Alexy 1978) is considered the claim that legal argumentation is a "special case" of general practical discourse. In order to question this claim, the author analyzes three different types of argument: (1) that legal reasoning is needed by general practical discourse itself, (2) that there are similarities between legal argumentation and general practical discourse, (3) that there is a correspondence between certain types of argument in general practical discourse and in legal argumentation.**     

汉魏晋“故事”辩析

故事即旧事 ,是本朝或先王的已行之事。在汉魏晋三代 ,国家遇有重大之事时多援引故事以寻求经典依据。晋时还将典型故事修定汇编 ,与律令并行 ,将其作为一种重要的法律形式。近代学者们对故事的认识颇有分歧。本文运用大量史料 ,辨别分析 ,论证汉魏晋故事的性质及其在实践中的运用规律 ,揭示故事与品式章程、制诏、律令的辩证关系 ,明确故事与例、比之间的大同小异。     

Globalization and the Decline of Legal Consciousness: Torts, Ghosts, and Karma in Thailand

This study analyzes the transformation of legal consciousness associated with the process of globalization. It examines changing conceptions of injury and compensation in northern Thailand, where global economic and cultural flows have had a dramatic impact over the past twenty years. In their "injury narratives," ordinary Thai people describe the harm they have suffered, the causes they identify, the issues of responsibility with which they struggle, the obligations and remedy systems they consider relevant, and the role of law as they perceive it. These accounts, as well as litigation records from the Chiangmai Provincial Court, suggest that a transformation of Thai legal consciousness has indeed occurred, but not in the direction one might have expected. Rather than embracing liberal legalism or conceptualizing their grievances in terms of rights, injury victims in post-globalization Thailand are now less inclined to perceive their experiences in legal terms and more inclined to rely on a new form of religious discourse in which Buddhist precepts justify the injured person's decision to refrain from the pursuit of compensation. This article offers an explanation of why globalization appears to have pushed legal consciousness in the direction of religiosity rather than rights.     

“诉累”的法经济学分析

“诉累”是司法界经常使用的一个术语。从法经济学的角度看“诉累”的产生原因在于普法力度不够、司法权力寻租、低下的司法效率、委托代理、较高的诉讼成本、行政机关对司法活动的干涉、较低的司法素质。诉累导致“租的耗散”、激化社会矛盾,导致司法公信的丧失和“理性”的违约行为。应加强普法活动、切实保证司法独立、全面提高司法人员的素质,健全法律援助制度、确立权力与责任相统一的原则。     

Imperialism, race, and therapeutics: the legacy of medicalizing the "colonial body"

The era of high colonialism in South Asia coincided with the period when eugenics came to dominate much of the scientific discourse in Europe and America. Such attitudes were naturally transplanted into the colonial world where medical researchers helped to establish a pathological "difference" between Europeans in India and the colonial "Other," thus creating a medical discourse dominated by racial segregated treatment regimes. With the growth of trans-national transfer of scientific knowledge, this colonial "research" began to underpin racially constructed medical practices wherever they occurred.     

私法中的“人格”范畴含义辨析

在私法理论和制度中，“人格”范畴具有“主体资格”、“主体”、“主体特质”、“主体性要素”四种含义。其中，“主体资格”指特定的实体可以成为私法法律关系之主体的法定条件；“主体”指特定的实体获得主体资格后的法律状态；“主体特质”指特定的实体可以据之享有主体资格的其客观上所具备的属性；“主体性要素”则是人格权的客体，指自然入主体得以构成的且应得到尊重和保护的客观要素。这四种含义之间的区别主要体现为：“主体资格”是“主体”得以形成的法定条件，“主体资格”范畴也就是用来描述“（某种）实体”与“私法主体”之间的“转化关系”的概念；而“主体特质”和“主体性要素”都是指“主体”（或拥有主体资格的“实体”）在客观上所具有的属性，这两个范畴都属于描述某种“事物”的概念。     

Reconstituting Paradise Lost: Temporality, Civility, and Ethnicity in Post-Communist Constitution-Making

This article focuses on constitutional developments and legal policies in Central Europe since 1989 and elaborates on their temporal analysis with special emphasis on the distinction between demos and ethnos in the political and legal discourse. Using various social theories of time, identity, and codification of social traditions, I argue that the difference between civility and ethnicity does not involve simply a conflict between liberal democratic aspirations and ethno-nationalist myths of authoritarian politics, but rather represents two distinct traditions manipulated by political agents and codified in the process of recent constitution-making. The process of selecting different traditions and political manipulations of the past is reflected at the level of both constitutional symbolism and specific governmental policies in post-Communist Hungary, Slovakia, Poland, and the Czech Republic. The final part of the text analyzes relations between the abstract symbolic language of constitutional documents and concrete, "ethnos-" based legal policies implemented in these countries of Central Europe.     

Towards the Semantics of "Constitutive" in Judicial Reasoning

The aim of the paper is to supply a contribution to the semantics of "constitutive," as confined to the scope of judicial reasoning. More precisely, the aim of the paper is to inquire what links the use of "constitutive" in three distinct (seemingly unrelated) issues on adjudication, namely: (a) the procedural classification of different sorts of judicial decisions, (b) the epistemological debate on the very nature of judicial decisions, and (c) a logical query on the import constitutive rules might be taken to have in affecting the sort and/or the nature of judicial decisions in which they might occur as the legal premiss, grounding the solution of the case. The attempt to fix some markers towards the semantics of "constitutive" in judicial reasoning will have Alchourrón and Bulygin's analyses as a main point of reference.     

灰色地带:反腐败法律的文化分析

法人类学对腐败和反腐败法律的分析做出了重要贡献。指出了法律界定为"腐败"的行为的社会根基以及腐败行为的两个规范框架:国家的法律和社会惯例;评估腐败问题时存在的双重标准:国际组织和西方国家常常认为"南方"和"东方"国家的腐败问题比"发达"国家更严重;反腐败与政治稳定常常难以求得平衡,媒体对腐败的报道带来了一系列棘手的问题,在处理反腐败问题时常常采用过于简单的两分法。法律人应当对这些卓识给予更多的关注。这对于理解英国的几个重大案件具有重要的意义。     

Confucian bioethics and cross-cultural considerations in health care decision-making

This article discusses the similarities and differences between Beauchamp and Childress's principlism and Confucian bioethics in terms of autonomy, beneficence, nonmaleficence, and justice. The author presents sensitive approaches for culturally diverse groups in health care areas and cautions against dichotomy in cross-cultural studies, which ignores the dynamic nature and intravariations of cultures. As a way of health care providers to become engaged in cultural diversity in nursing practice and research, the author suggests that they do not only have a general knowledge about the theoretical differences among groups through "normative analysis" but also learn to appreciate each individual's particular beliefs and values through narratives of morality. Health care providers as well as legal professionals need to cultivate "cultural humility," which is the willingness to explore the similarities and differences between their own and each client's priorities and values and to develop courses of action with patients.     

An Exploration into Law and Narratives: The Case of Intellectual Property Law of Biotechnology

This essay explores the possibility of applying narrative analysis as a tool for the socio-cultural study of law. Narrative is understood to be both a form of representation of reality, as well as a starting point into the enquiry about the nature of reality itself. Consequently, an analysis of legal narratives could help to assess law’s impact on our understanding of social reality and of ourselves. The narrative context, which is examined for its plot and metaphors, is the intellectual property law of human biotechnology. The legal representation of techno-scientific knowledge in intellectual property law is contrasted against other conceptions of science, especially with the ones that are put forward by scholars in science and technology studies and anthropology. It is argued that the present legal narrative of human biotechnology and intellectual property not only lacks sufficient understanding of the scientific knowledge-making process but also, importantly, that it is in need of a self-reflexive understanding of its own practice. At the end, the possibility of changing the present legal narrative will be probed with the help of different narrative theories of the self and of representation, which have been advanced by White, Taylor and MacIntyre.