Persons and available identities: Gender in Hegel's philosophy of law

Conclusion There is certainly a paradox in all this but it is not that of the constitution and the counterfactual beliefs it demands of us. It is rather that in the absence of Hegel's inspiration and of the actual closure on the dialectic of freedom that justifies his claims, his accomplishment, the logical reconstruction of modern Western ideas of right, would not have been possible. Some will cry irony in the face of this paradox and well they might. My argument,vis a vis Hegel isad hominem. But it is not made for the purpose of irony. It is made in the hope of recovering Hegel's sense of the ambiguity of tautology from the straitjacket of our legal and ethical thought. I would hope then to use this paradox to subvert anidée fixe — that right is right — and develop, from the lives of those whom the constitution has stripped bare, our understanding of its wrong.     

Prerogative legislation as the paradigm of bad law-making: the Chagos Islands

Legislation made by way of the Royal Prerogative is a paradigm of bad law-making. This is examined via the case study of the British Indian Ocean Territory (Constitution) Order 2004. The Order was made without reference to a legislature and without proper scrutiny or legislative drafting. It is unclear, ambiguous and imprecise. It does not use plain language or gender-neutral language. It is deliberately inaccessible, making it extremely hard for the citizen to know its contents. In form and substance, it offends against the rule of law.     

Reflective Judgement and Prudential Rationality: A Contribution to an Inclusive Practical Application of Law

Hannah Arendt has developed a theory of the importance of judgment of taste for political manners, founded on the Kantian aesthetic theory. Nowadays this theory is considered a current theoretical reference for establishing a political way to reconcile the demands of the radicalization of deliberative democracy with the need for political inclusion (Iris Marion Young, Seyla Benhabib). Albena Azmanova in her The Scandal of Reason: A Critical Theory of Political Judgment proposes an inclusive political rhetoric. The political theory founded on judgment is based on Kant’s philosophy; it was developed by Arendt and has greatly influenced the current debate, as an alternative theory in which the moral basis of law can be more sensitive to human contexts; a universalist theory more adequate for dealing with the tragic dimension of human life. The theory of political judgment uses the concepts of reflective judgment and ‘enlarged thought’ as its main concepts. As a starting point, a theory like this considers the singular judgments of justice that each person makes. The background, therefore, is not a rational foundation of principles, but the capacity of rational beings to make judgments. This post-metaphysical theory of law, based on a theory of judgment, is a critique of legal positivism, but presents itself as an alternative to the idealistic theory of law. But this theoretical project has received some criticism related to the adequacy of Arendt’s rereading of Kantian philosophy and her attempt to approximate Kant’s reflective judgment to the Aristotelian concept of phronêsis. Some critics, such as Bryan Garsten, believe that Kant’s rhetoric of public reason diminished and displaced the prudential faculty of judgment that Arendt is to be interested in reviving. Arendt’s attempt to find a theory of judgment in Kant’s aesthetic theory is not successful, in Garsten’s view. Our purpose is to show that a critical theory of judicial judgment is not only possible, but necessary; Arendt’s theory of judgment offers an important contribution to a critical theory of judicial judgment, particularly one devoted to the construction of a legal theory that prioritizes a politics of social inclusion. This theory proposes a critical approach to the project of the procedural conception of democracy, since it can mask social exclusion. An adequate understanding of judicial argumentation cannot forget that it happens in a rhetorical context: it is not only important what a discourse says, but how it says it. The radicalization of deliberative democracy supposes a revision of the ways judicial deliberation is thought: not by reference to universal or at least general principles, but taking into consideration what is ‘critically relevant’, with a view to remedying social injustice (following Azmanova).

     

The Role of the Jurist: Reflections around Radbruch

Many different kinds of professionals work with law, but often they seek to use law for particular governmental or private purposes, they focus on some specific areas or aspects of its creation, interpretation or application, or they study it for its interest judged by criteria that are given by fields of scholarly practice outside it. Is there a special significance for a role exclusively concerned with analysing, protecting and enhancing the general well‐being or worth of law as a practical idea? This article argues that such a role is important. Building on Gustav Radbruch's juristic thought, it asks how that role could be elaborated and how a professional responsibility for discharging it might be envisaged. Many professionals concerned with law adopt such a role incidentally or intermittently, but it needs more prominence and clear demarcation. The article suggests that it might be seen as the specialised role of the jurist, treated as a particular kind of legal professional. The term “jurist” would then have not just an honorific connotation. It would indicate a Weberian “pure” type that may approximate some current understandings of “juristic” practice; but it would also identify a normative ideal—something intrinsically valuable. Seen in this way, the jurist is one who assumes a certain unique responsibility for law.     

Victim Blame in Fictional Crime Dramas: An Examination of Demographic,Incident-Related,and Behavioral Factors

How victims are portrayed in fictional crime dramas is an important way that individuals come to understand and interpret what it means to be a victim of crime. We examine how demographic variables (e.g., gender, race, age), incident variables (e.g., location of offense, relationship between victim and offender, type of crime), and behavioral variables (e.g., drug use/alcohol use, sexual promiscuity, negative personality traits, or concealing elements of personality) predict victim blame. Although some literature has analyzed victims in fictional crime dramas, such literature has been limited to a single year, a single show, a particular crime, or a particular factor. We extend this literature by focusing on multiple factors that predict victim blame using data collected from a systematic sample of 124 episodes from 4 fictional crime dramas (CSI, Law & Order: Special Victims Unit, Criminal Minds, and Without a Trace) over 7 years (2003–2010).     

混沌理论的心理治疗观

混沌理论给我们理解真实、复杂的人的心理提供了一个新的视角。将混沌理论应用于心理治疗,不仅是对传统心理治疗观的突破,同时对心理治疗的方法也产生了重大影响。按照混沌理论的观点,人的心理的本质是非线性的,而心理的混沌状态则是导致更高阶段有序结构出现的动力学基础。     

Legal Vices and Civic Virtue: Vice Crimes, Republicanism and the Corruption of Lawfulness

Vice crimes, crimes prohibited in part because they are viewed as morally corrupting, engage legal theorists because they reveal importantly contrasting views between liberals and virtue-centered theorists on the very limits of legitimate state action. Yet advocates and opponents alike focus on the role law can play in suppressing personal vice; the role of law is seen as suppressing licentiousness, sloth, greed etc. The most powerful advocates of the position that the law must nurture good character often draw on Aristotelian theories of virtue to ground the connection between law and virtue. While Aristotle believed that law and character were linked, it is ironic to note that he did not argue for the position evidenced in our vice laws that law was likely to succeed in instilling virtue. Indeed, Aristotle thought the project of using law to instill private virtue was nearly certain to fail. Aristotle’s deep concern was not for the way law protected private virtue within each person but the way law had to protect civic virtue between citizens. This article argues that even from its foundations, the project of vice crimes as moral instruction is misconceived. The use of law for overly instrumental or narrow reasons opens law and legal institutions to abuse and factionalism. Lawyers, judges and others specially connected to law must first and foremost aim at addressing “legal vices,” vices internal to the institutions of law. Particularly, increasing factionalism and instrumentalism which disconnects law from the pursuit of the common good threatens our civic bonds. Most importantly, where civic bonds are disrupted, citizens have no reason to remain law abiding. The striking lesson, captured both in ancient philosophy and modern history, is that when legal vices grow unchecked and factions use the law to pursue narrow interests, ultimately law abidingness is corrupted and interest groups harm themselves as much as others.     

Natural Law and Cosmic Harmony in Traditional Chinese Thought

Abstract. The article attempts to show (i) the way in which the notions of "natural law" and "cosmic harmony" have been applied by Western scholars in the interpretation of traditional Chinese thinking about the role of law in society, (ii) the extent to which the Western interpretations can be supported by the Chinese sources, and (iii), more specifically, the degree to which official Chinese thought subscribed to a correlation between the occurrence of natural disasters and acts of maladministration or injustice on the part of the emperor and state. Generally it is argued that the extent to which Chinese statesmen and administrators actually believed that errors in the infliction of legal punishment or the sentencing of offenders would produce aberrant natural phenomena has been exaggerated by Western scholars.     

Desperately Seeking ‘Justice’ in Classical Chinese: On the Meanings of Yi

This essay sets out to search for an equivalent Chinese word to the English word ‘justice’ in classical Chinese language, through ancient Chinese philosophical texts, imperial codes and idioms. The study found that there does not seem to be a linguistic sign for ‘justice’ in classical Chinese, and further, yi resembles ‘justice’ in some ways and has been used sometimes to translate  ‘justice’, but yi is a complex concept in traditional Chinese philosophy with multiple meanings and it is dissimilar to ‘justice’ in their semantic and pragmatic meanings in Chinese and English legal culture. While ‘justice’ is a keyword and fundamental to Western law, yi is not a legal word or concept in classical Chinese in traditional China. Given its complexity, yi does not have a one-to-one equivalent in English. It sometimes carries a sense of ‘righteousness’ and occasionally ‘justice’, but yi and ‘justice’ are not equivalent. In view of these, it becomes understandable that the translations of yi in contemporary Chinese usage vary ranging from ‘friendship and justice’ to ‘greater good’, among others. The meaning of yi is still uncertain and context sensitive as it was two thousand years ago.

     

The Sheffield School and Discourse Theory: Divergences and Similarities in Legal Idealism/Anti‐Positivism*

Abstract. When first I began this paper, I envisaged it as a fairly straightforward exercise in comparison between the Sheffield School’s and Discourse Theory’s varieties of legal idealism or anti‐positivism (these terms being synonymous for the types of theory that contest positivism’s separation thesis, that is, the contention that there is no necessary conceptual connection between law and morality). One obvious distinction, for example, is between the moral substance at the heart of these respective theories: the Sheffield School’s legal theory being founded on Alan Gewirth’s Principle of Generic Consistency, and Alexy’s theory focusing on Radbruch’s intolerable degree of injustice. However, the more I thought about the two respective theories, the more interested I became in one particular issue: the denial of the separation thesis that constitutes legal idealism. Here, I present a paper which is not so much concerned with the substance of two different types of legal idealism or anti‐positivism, but which focuses on the question of whether and in what way either or both of the theories can correctly be characterised as legal idealist or anti‐positivist. I focus in this paper on two works in particular: Deryck Beyleveld and Roger Brownsword’s Law as a Moral Judgment (1994), and Robert Alexy’s The Argument from Injustice (2002).     

Forty-five revolutions per minute: a qualitative study of Hybrid Order use in forensic psychiatric practice

Psychiatrists who recommend a Hybrid Order (Section 45A) as a disposal option at the point of sentencing accept that the convicted individual, as well as being mentally disordered and in need of treatment, is also culpable and deserving of criminal punishment. Ethical and clinical concerns have typically limited its clinical use. However, in 2015 the Court of Appeal specified in R v Vowles and others that the Hybrid Order disposal should be considered first in terms of potential mental health disposals. This judgement sets a high threshold for the use of the hospital order which has been the bedrock of inpatient forensic psychiatric practice since 1983. This study sought to explore the attitudes of consultant forensic psychiatrists towards the use of the Hybrid Order in the wake of the Vowles judgement. We interviewed 12 consultant forensic psychiatrists with longstanding experience of psychiatric sentencing recommendations. We found that the majority of consultants considered the Hybrid Order to be a valuable disposal option when used under specific circumstances. However, significant concerns were raised about its use in those with an enduring psychotic illness. Community aftercare arrangements for Hybrid Order disposals were viewed as inferior to community aftercare arrangements for Section 37/41 patients.     

The Construction and Demolition of the Luhmann Heresy

Among social theories, autopoiesis achieves an almost unequalled level of complexity and abstraction. Yet this has has not in any way deterred commentators from among the ranks of legal and socio-legal academics from launching critical attacks on the theory. This article argues that many of these detractors miss their mark, because their authors either misinterpret the theory by failing to recognize its radical nature and the new paradigm that it introduces, or, in the more extreme cases, project onto the theory immoral or irrational ambitions which are nowhere to be found in the writings of Niklas Luhmann or other autopoietic theorists. All this brings to mind Nabokov's novel Pale Fire, which also is concerned with criticism, projection and misinterpretation (as well as self-reference and insanity). In that novel the text is a poem, while the plot, concerning a paranoid literary critic, unfolds in the notes commenting on this poem. This article reverses this device by placing the main commentaries and criticisms in the main text and the `autopoietry', extracts from the writings of autopoietic scholars, which form the subject of the critical attacks, in the footnotes.     

Operator service access and pay telephone compensation--Federal Communications Commission. Final rule; order on reconsideration

Five petitions for reconsideration or clarification were filed regarding Policies and Rules Concerning Operator Service Access and Pay Telephone Compensation, CC Docket No. 91-35: Report and Order and Further Notice of Proposed Rule Making, 6 FCC Rcd 4736, 56 FR 40,793 (1991) (hereinafter Report and Order), in which the Commission adopted policies and rules concerning consumer access to operator service providers (OSPs) and compensation for competitive public payphone owners for calls not utilizing their presubscribed OSPs. In response to the petitions, the Commission adopted an Order on Reconsideration (hereinafter Order) in which it reaffirmed that: (1) Call aggregators must allow consumers to use equal access ("10XXX") codes according to the schedule described in the original Report and Order, with certain clarifications; (2) all OSPs, except those exempted in the Order, must establish an 800 or 950 access number within six months of the effective date of the previously adopted rules; and (3) calls initiated with an 800 number that does not serve as an OSP's access code are not within the scope of the statutory provision that required the Commission to consider payphone compensation. In addition, the Commission granted the request to order local exchange carriers (LECs) to offer blocking and screening services designed to control potentially fraudulent 10XXX calling. The Commission deferred certain unblocking deadlines pending the deployment of the required LEC services.     

哈贝马斯法律合法性思想与西方马克思主义传统之关联

哈贝马斯《在事实与规范之间》一书的核心论题是要解决现代社会法律的合法性问题。哈贝马斯法律合法性思想继承并发展了西方马克思主义传统,主要表现在：发展了西方马克思主义“强制与同意”论题;扬弃了法兰克福学派实证主义批判传统;重构了西方马克思主义理性观。     

A Quandary Concerning Immanence

A stationary eddy that constantly re-forms in the riverbed of the evolution of Western normative institutions, Legal Critique dates back, beyond modernity, to the beginning of the so-called Common Era. But critique also shapes the historical review of earlier phases of this evolution, and this not only as a method of the examination of sources, but also as a transferential displacement that tends to project into history the divides and aporias which define a present political situation. Unsurprisingly, this proceeding betrays more about current conceptions than it reveals about those of the past. The fate of the philosophical topic of immanence and transcendence and that of the proto-modern politics inaugurated by the distinction of God’s absolute versus ordered power offer a significant case in point. Certain critical orientations find in the long and complex history of these divides merely their own anticipated echo. Yet, the split between the adepts of an Aristotelian universe rooted in the being of the good and the followers of Spinoza, accustomed to absolute power and immanent causality, resists such simplifications and warrants a new examination.     

The Predicament of Modern Law: Parker's History of a Law Without a History that Matters

Kunal Parker's Common Law, History, and Democracy in America, 1790–1900: Legal Thought Before Modernism shows how nineteenth‐century thinkers thought about law and history differently than do post‐Holmesian modernist sociolegal scholars, whose ahistorical law appears contingent on politics, power, or will. Understanding time and history to be essential to law, nineteenth‐century jurists conceived of a common law that was able to work with and to shape democracy, Parker argues. Contra modernist histories then, Parker claims that the common law was not a reactionary force that stood in the way of democracy and economy. His history of legal thought before modernism suggests, further, the predicament of antifoundationalist modern law and modernist scholars: stripped of time and without its own history, how can law be anything other than politics, power, or will?     

“Behave Like Enraged Lions”: Civil Militias,the Army and the Criminalisation of Politics in Indonesia

Since the end of the authoritarian New Order regime in May 1998, Indonesia has embarked upon a difficult journey towards democracy. One of the key questions raised by the rise of social and political violence in both Java and the Outer Islands since President Suharto's resignation from power is that of the wearing away of the state's monopoly of the means of violence and of its legitimate uses. But the process of the criminalisation of both state agencies and political parties is much older than one would have it. It begun during the late colonial period and gained momentum during the war of independence, in the late 1940s, when army units had to engage in extortion and smuggling to cater for soldiers' needs. Under the New Order, this beam of relationships between the police, the army and criminal gangs was given an official recognition of some sort, hence quasi-legal protection, through the creation of the “System for the Protection of the Environment” (Siskamling). This “system” enabled many petty criminals from the red light districts to join civil and para-military militias and even, at times, to enter public administration. Post-Suharto Indonesia inherited these criminalised “grey areas” between state agencies and the underworld, where one would find numerous masters of violence – people for whom violence is both a way of life and a way of making a living.     

Developing Countries and Global Environmental Governance: From Contestation to Participation to Engagement

Developing countries did not start off as demandeurs of global environmental governance. Although they are still rather skeptical about the global environmental enterprise, they have come a long way from being the vigorous contestants that they were three decades ago. This fascinating evolution has not only changed the views of developing countries but has also transformed the shape of the global environmental discourse, most significantly by turning what used to be global environmental politics into what is now the global politics of sustainable development. This paper charts this evolution by using the twin conceptual lenses of effectiveness and legitimacy and the heuristic markers of the three key global conferences on the global environment (Stockholm 1972; Rio de Janeiro 1992; Johannesburg 2002). The paper argues that the pre-Stockholm era was exemplified by a politics of contestation by the South; the Stockholm-to-Rio period was a period of reluctant participation as a new global compact emerged around the notion of sustainable development; and the post-Rio years have seen the emergence of more meaningful, but still hesitant, engagement by the developing countries in the global environmental project but very much around the promise and potential of actualizing sustainable development. The author is grateful to an anonymous review, and to Steinar Andresen, Ellen Hey, and Jessica Green for valuable comments.     

腥瞬糯葱鹿こ滔钅?HAIPURT200

396I;I139_6刘媛;00070005;107-110基于混沌优化算法的支持向量机参数选取方法袁小芳;王耀南;湖南大学电气与信息工程学院,湖南大学电气与信息工程学院 长沙410082,长沙410082机器学习;;支持向量机;;混沌优化;;参数选取支持向量机(SVM)的参数取值决定了其学习性能和泛化能力.对此,将SVM参数的选取看作参数的组合优化,建立组合优化的目标