南非宪法法院的"合理性审查标准"介评

"合理性审查标准"是南非宪法法院对政府积极义务进行审查的主要标准,是在宪法法院的判例中形成并逐渐发展起来的。"合理性审查标准"的采用,使宪法法院可以在不侵入立法和行政功能、不与政治部门发生直接冲突的情况下,实现对社会权一定程度的保护。但是,宪法法院对"合理性"的过分关注也制约了法院对政府积极义务审查的范围和程度,对社会权的保护产生了一些不利影响。     

Domestic violence case processing: a matter of local legal culture

As one enters a courthouse, its culture is communicated to its listening visitors. The manner in which the security guards speak; the length of time victims are kept waiting; the amount of bail a defendant is assessed; communicate messages to those who are paying attention. Domestic violence cases have long suffered from lenient treatment and dismissals in our criminal courts. This paper examines a unique explanation for this problem: the court’s local legal culture. The elements of two courts’ local legal culture that most profoundly impacted their processing of domestic violence cases are examined. Over a six month period, 23 in depth interviews were conducted with court workgroup members in two courts, one with a specialized domestic violence session and one without. Court room observations were used to supplement these interviews. The results were insightful and telling about how a court’s culture can, at times, be more influential on case processing than the law itself.     

公民社会经济权利宪法救济之中国路径——以南非宪法法院判例为切入点

南非宪法法院对公民社会经济权利的违宪审查判例受到宪法学界的广泛关注,这种做法具有制度创新和人权保障的双重效应。我们可以借鉴南非宪法法院相关判例,建立公民社会经济权利宪法救济的中国路径。在人民法院系统中设立宪法法庭,在人民代表大会系统中设立宪法委员会,并且在人民法院和人民代表大会之间建立特定的衔接机制,通过这些措施有助于实现中国特色的公民社会经济权利宪法救济。     

The special role of foreign legal history in China in the construction of a new legal system

The development of the Chinese legal system is based on the learning of foreign legal systems. Foreign legal history, as one of the elementary courses in higher legal education, is becoming a driving force for China’s progress toward the rule of law and is playing an indispensible role in the construction of Chinese legal system by educating, cultivating and academic exchanging. The discipline of Foreign Legal History not only provides diverse perspectives for the construction of a new Chinese legal system, but also testifies the establishment of the rule of law in China. It not only benefits Chinese legal system, but also makes contribution to the cultivation of the new generation of Chinese legal talents. Therefore, we should insist on learning from the legal cultural heritage embedded in Foreign Legal History for the purpose of developing Chinese legal system.     

The Jurisprudence of Constitutional Conflict: Constitutional Supremacy in Europe before and after the Constitutional Treaty

Abstract:  One of the core constitutional questions for national constitutional courts in the EU in the past decades has been whether to accept the claim made by the Court of Justice that EU law is the supreme law of the land, taking primacy even over conflicting national constitutional provisions. With the inclusion in the recently adopted Constitutional Treaty of a clause explicitly confirming the 'primacy of EU Law' appearances suggest that the EU is about to establish a characteristic of mature, vertically integrated, federal states such as the USA. This article argues that this view is mistaken. It develops a comprehensive jurisprudential framework for addressing constitutional conflicts, 'Constitutionalism Beyond the State' (CBC). CBS detaches the discussion of supremacy and constitutional conflict from a statist framework; provides a jurisprudential account that explains and justifies the highly differentiated, context-sensitive and dynamic set of conflict rules that national courts have in the past adopted; and provides the lacking theoretical basis for the more attractive, but undertheorised sui generis accounts of European constitutional practice that have recently gained ground in the literature. CBS provides a jurisprudentially grounded reconstructive account of why the issue of constitutional conflict is as rich and complicated in Europe as it is and why it is likely to remain so even if the Constitutional Treaty is ratified. The article then goes on to make concrete proposals addressed to national constitutional courts and the Court of Juctise respectively about how, in application of the developed approach, constitutional conflicts ought to be addressed doctrinally. It includes a proposal to read the new 'constitutional identity' clause as authorising Member States as a matter of EU Law to set aside EU Law on constitutional grounds under certain circumstances.     

Social and legal control in China: a comparative perspective

This article exposes the reader to a different social and legal control system and a different way of thinking about crime--that of China. Chinese think positively about the nature of humans and their potential, and China's social control system weaves together a unique combination of formal and informal mechanisms with a strong emphasis on the latter. The criminal justice system constitutes a key element of the social control system, but it appears to be more of a last resort. It is hoped that through a comparative analysis, the reader can develop a deeper understanding of different social and legal systems.     

Studying women legal scholars: the challenges of life history

Biographies of prominent women often advance inquiries that lead to easy and uninteresting conclusions that their subject should be celebrated or ignored. In contrast, this article argues for more life histories of women legal scholars that bring out the complexity of their lives. It suggests three ways to execute this work that guard against the making of simple binary conclusions. First, it argues that these studies should be open inquiries that present a range of views of their subject, from both the past and present, and encourage audiences to form their own judgments. This approach will help both reader and scholar to recognise their biases. Second, it makes a case for treating legal scholars differently from pure educators, scholars or lawyers. It suggests that their unique role should inform the work’s central inquiries. Finally, it argues that unearthing a subject’s attitude towards feminism and feminist legal scholarship can be done in ways that strengthen the work’s contribution to the history of the discipline.     

The lecturer,the law student and the transmission of legal culture

Abstract

This paper presents a critique of recent work on the culture of the law school and its inhabitants. It examines two questions raised particularly by the work of Professor Fiona Cownie¹, one about staff and the other about students. Cownie detects a shift to greater eclecticism in the general intellectual climate of the legal academy and this paper questions whether this new stance is intellectually coherent. The second issue considered is the extent to which certain features of legal academic culture; its theoretical stances, the skills and values taught, persist and have an enduring effect on law students after they have left the academy and moved to the world of work.     

The Best Interests of Children in the South African Constitution

The welfare principle in cases involving children has been incorporatedin the Bill of Rights of the 1996 South African Constitution,while also remaining a principle of common law. This articleinvestigates the effects of including the best interests principlein the Constitution. It examines, first, whether the best interestsprinciple is a constitutional right, a value, an interpretativetool or a rule of law and argues that, although courts describeit as a right, it is not treated as such. In fact, courts oftenuse the best interests principle to avoid dealing with otherconstitutional rights of children and family members. The secondpart examines the role of the constitutional welfare principlein the development of common law rules of family law and findsa great disparity between different courts, some of which ignorethe existence of the principle in the Constitution, others assumingthat it has the same meaning in the Constitution as in commonlaw and yet others using it to justify drastic changes to commonlaw. The article suggests that the inclusion of the welfareprinciple in the Constitution should have concrete effects,chiefly to direct courts to conduct a proper examination ofthe other constitutional rights of children and other familymembers.     

Truth, Reconciliation and Justice: The South African Experience in Perspective

The lecture examines the role and objectives of truth and reconciliation commissions in societies undergoing major political transitions, with particular reference to the model of South Africa, and compares this method to others suggested by international criminal law for accommodating both retributive and restorative responses to past conflicts and crimes against humanity.