United Kingdom Military Law: Autonomy, Civilianisation, Juridification

This paper argues that military law has undergone a long-term process of change. Previously an autonomous legal system with little civilian input at the administrative, judicial and policy-making levels, military law became subject to a consensual policy of civilianisation from the early 1960s, reflected primarily in the adoption of civilian criminal law norms by the military justice system. More recently there has emerged the juridification of significant areas of military relations in respect to discipline and certain other terms of service which hitherto have not been subject to externally imposed legal regulation. Explanations for the shifts from autonomy, through civilianisation, and then to juridification, ranging from political and social developments to new human rights and equal opportunities discourses, are offered for such changes.     

我国政法教育的变迁与展望

政法教育形成于1950年代,基于巩固新生政权的需要,它为政法工作培养专门干部。与政法工作强调政治性一样,政法教育是强调政治性的法学教育,非常重视党的政治路线和组织纪律教育。改革开放后,法学教育日趋强调专业化、职业化。20世纪80年代,仍继续强调政治性。这与当时的社会治安形势及“严打”刑事政策有一定关系。1990年代以后,政治性在政法教育中日渐淡出,法学教育趋向服务市场经济的专业化。新时代的治国理政,在法治领域创造了一系列新实践,法治思维和法治方式运用深入政治领域,国家和社会治理广泛纳入全面依法治国范畴,涉外法治深度关联国际政治、国际关系。这些实践造就了强调政治性的大法治工作格局,对法学教育提出了新要求,催生了新政法教育。党内法规学、纪检监察学、国家安全学、社会治理法学等新学科应运而生,人权法学、知识产权法学等学科应需更新。新政法教育与专业化法学教育并行,扩展了法学教育的领地。     

Institutional Paths to Policy Change: Judicial Versus Nonjudicial Repeal of Sodomy Laws

What variables lead judicial and nonjudicial decision‐making bodies to introduce policy change? In the theoretical framework proposed, the path‐dependent nature of law has a differential impact on courts and legislatures. Likewise, certain political institutions including elections and political accountability lead those bodies to introduce policy change under dissimilar circumstances. Global trends, however, affect both institutional paths equally. We test this theory with data for the repeal of sodomy laws in all countries from 1972–2002. Results from two disparate multivariate models overwhelmingly confirm our predictions. The unique institutional position of courts of last resort allows them to be less constrained than legislatures by either legal status quo or political accountability. Globalization, on the other hand, has a comparable effect on both. This work is path breaking in offering a theoretical framework explaining policy change via different institutional paths, systematically testing the framework comparatively and with respect to a policy issue still on the agenda in many countries.     

A legal perspective on university technology transfer

In the thirty-five years after passage of the Bayh–Dole Act of 1980, a robust literature has documented the emergence of university technology transfer as a critical mechanism for the dissemination and commercialization of new technology stemming from federally-funded research. Missing from these investigations, however, is what this paper terms the legal perspective, an understanding of how the law and its attendant mechanisms impact university technology transfer. Specifically, the paper reviews the extant legal scholarship and provides examples of how case law, legal structures, and the unique nature of intellectual property law affects technology transfer, as well as higher education policy and management. Throughout, we propose critical questions for future investigation, which serve to form a cross-disciplinary research agenda that can contribute fresh insights to scholarly and policy discussions related to the role of universities in economic and social development.     

我国公共场所图像监视法律治理路径分析

在过去的近十年中，我国的公共图像监视在政策、项目及资金等支持下得到迅猛发展。在我国特定的政治与社会背景下，公共场所图像监视是社会治安综合治理与公共安全技术防范系统的一个组成部分．呈现出政策创议、项目推动的发展历程。在法律治理和回应性法制视角下，公共图像监视法律治理是对公共图像监视实践的法律回应。目前，我国已初步构建起涵盖宪法、社会治安综合治理法律文件、公共安全技术防范法律文件、具体领域法律文件以及公共场所图像监视法律文件等公共场所图像监视法律治理的体系，但该体系仍然存在急需健全和完善的层面。     

Disqualified Bodies: A Sociolegal Analysis of the Organ Trade in Cairo,Egypt

Legislative and policy interventions in response to the organ trade have centered on the introduction of criminal sanctions in an effort to deter organ sales and/or “trafficking.” Yet, such measures fail to take account of the social and political processes that facilitate the exploitation of individuals in organ markets in different contexts. Informed by empirical data, gathered via a series of in‐depth interviews with Sudanese migrants who have sold a kidney, this paper examines the link between increased urbanization, migration patterns, informalization, and the emergence of organ markets in the Egyptian‐Sudanese context. The findings illustrate how processes of legal marginalization and social exclusion leave people vulnerable to exploitation in organ markets. The prevailing law enforcement response does not capture or respond to the empirical reality. Accordingly, this paper shifts the emphasis away from criminalization toward an analysis of the legal barriers and policy decisions that shape the poor bargaining position of organ sellers. In doing so, it opens up discussion of the organ trade onto wider critiques that disrupt boundaries between formality and informality in labor markets and trouble dominant modes of criminalization.     

Space and Law, Gender and Land: Using CEDAW to Regulate for Women’s Rights to Land in Vanuatu

International laws such as The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) promise a universal system of rights to varied people in varied places. In many Pacific states this has been translated to mean that women should have the same privileges as men to control, possess and use land. This could not be further from the truth as evidenced by women’s experiences in Vanuatu, which bring home the visible and invisible spaces of international law. The insights of legal geographers into the spatialised dimensions of social, political and economic activities, together with those of feminist legal scholars into the gendered nature of law, are invaluable in understanding how some spaces are prioritized while others are devalued. We rely on these insights to uncover the prioritized legal spaces of Vanuatu and to locate them against the lived-in spaces of Vanuatu’s women. Becoming aware of the multispatiality of law is the first step in contemplating a landscape where justice can play a part.     

A Reasonable Balance of Law and Sentiment: Social Order in Democratic Taiwan from the Policeman's Point of View

Taiwan's political democratization has engendered a contradiction in its legal regime: consolidation of rule of law at the macro-institutional level is matched by the persistent marginalization of legal authority in ground-level social practices. This article uses an ethnographic study of neighborhood police to explore certain practical and structural elements involved in maintaining this contradictory sociopolitical order. I examine some of the processes through which state authority is invoked and applied to the policing of public space, focusing on the ideals of legitimacy that animate these processes. The argument of the article is that historical and cultural factors embodied in contemporary Taiwan's "idea of police"—exemplified in the trope of a balance between reason, law, and sentiment—are crucial to understanding how solidification of the rule of law within state institutions is kept within the boundaries of a social sensibility that does not take law as the last word.     

The Changing Face of the Yakuza

Over the last half century, Japan has undergone considerable political, economic and social change. In response to these changes, Japan's criminal organisations, collectively known as yakuza, have themselves rapidly adapted. This chapter explores these developments. The two main factors driving the yakuza's historical development are first, changing market opportunities and secondly, vagaries in the legal and law-enforcement environment in which these groups operate. During the last decade these two factors have had a serious impact on the yakuza fortunes; the 1992 bōryokudan (yakuza) countermeasures law and Japan's protracted economic woes following the collapse of the bubble economy in 1990 have made their lives considerably harder. Since then, legal and social developments have further undermined these groups. While the yakuza have attempted to reduce the impact of these developments by adopting a lower profile and strengthening the mechanisms by which inter-syndicate disputes are resolved peacefully, there is inevitably a tension here with their members' needs to make money. The continued existence of illegal markets, and the lack of political will to seriously tackle these groups, makes the survival of these groups a certainty. However, the space within which they can operate has diminished and is diminishing.     

Mental health law and the EU: the next new regulatory frontier?

Over the last decade the EU's engagement with health law and policy has rapidly increased and there is now a growing body of literature highlighting this evolution and the impact of legal and regulatory structures in this area. In contrast the specific impact of EU law and policy in relation to the area of mental health remains the subject of comparatively little engagement. The aim of this paper is to examine whether mental health law and policy will become a major site for EU policy and law in the future. It examines the development of EU policy in this area. It sets this in the context of related legal developments such as the Charter of Fundamental Rights and the new EU Patients Rights Directives. It suggests that while it might be at present premature to envisage that a single body of EU mental health law itself may be unlikely that nonetheless the EU presents what is a potentially very influential site for regulation, law and policy in this area in the years to come.     

Law,state and economy: A Canadian overview

Within the last two decades increasing attention, both public and academic, has been directed towards the relationship between law and social change in Canadian society. A body of literature has emerged, including texts, articles and a journal, which focus upon relationships between law and society, institutionalized law reform commissions, and socio-legal centres. Theoretically the work has gone from an early focus upon consensus, order related assumptions to more recent critical studies in political economy. In order to appreciate the complex and contradictory nature of law and social institutions, a dialectical approach seems appropriate. This allows one to incorporate relevant research and insights from other theoretical perspectives, while providing a comprehensive, structural sense of legal activity and change within a social context. Of particular significance is the appreciation of human action and struggle, praxis, within changing structural and historical conditions.     

(Re)constructing the Head Teacher: Legal Narratives and the Politics of School Exclusions

School exclusions are a site of political and social contestation and in recent years statutory reforms and popular demands have focused on increasing the autonomy of head teachers. This article explores this trend and questions why, in a culture of human and children's rights, head teachers have such extensive powers within their schools and why law has, to a large extent, failed to provide a check on these powers. It does so not by doctrinal analysis of domestic and human rights law but, rather, by enquiring into how legal narratives construct the role of the head teacher and by locating the practice of exclusions within a broader social and political context. It suggests that demanding that the head teacher be unfettered in his or her decisions relating to exclusions ought not to be understood as a policy of 'non-intervention' or a return to a 'reassuring' past but, rather, as a contemporary policy that reinforces the construction of excluded pupils as marginalized non-citizens.     

Life and death before birth: 4D ultrasound and the shifting frontiers of the abortion debate

The development of 4D ultrasound technology has democratised fetal imagery by offering direct visual access to realistic images of the fetus in utero. These images, which purport to show a responsive being capable of complex behaviour, have renewed debate about the personhood of the fetus and the adequacy of current abortion regulation. This article considers recent abortion law reform initiatives in the United Kingdom and the United States and observes two shifts in the frontiers of these debates. The first concerns a shift from viability to sentience as a criterion of legal significance. The second concerns a shift toward constructing abortion in terms of feticide as distinct from the termination of pregnancy. Both strategies seek to deploy morphological similarities between the sentient fetus and newborn baby as a basis for extending law's dominion over the fetus.     

政治文明、和谐社会与法治理念——法治乃政治文明所需、和谐社会所求

由政治文明与和谐社会思想衍生的法治理念具有丰富的内涵。实践社会主义法治理念,必须建立中国特色的以权力制约与权力统合为内容的分权体制,不断提升执政党的民主能力和法治能力;必须贯彻人本思想、民本精神,尊重和保障人权,实现人民参与,使权力“属于人民、通过人民、为了人民”;必须以宪政与人权为核心价值,改造国家精神和政治价值观,建立和完善全面的权力制约体系,建设有限政府;必须将公平正义视为立法和制度的首要价值,为法制注入人性、人道和人权精神,通过公正司法维护社会正义;必须强化法治思维,将人权和正义价值作为政治社会稳定的内涵,以贯彻法治、保障人权和维护正义为服务大局的指导思想和行动指南;必须构建以正义和良知为基本内涵的政法文化。     

Needs Assessment and Services for Drug-Abusing Women Offenders

The debate over the abortion law resurfaced in Italy in 1988 after seven years of silence. Unlike the debate in 1981, in 1988 the feminist front was more diversified and abortion was discussed in ethical terms rather than in social and political terms. This paper describes and discusses the current debate on abortion by making reference mainly to the feminists' positions.     

Assisted dying and the context of debate: 'medical law' versus 'end-of-life law'

This paper provides a reflective analysis of the nature of normative critiques of law generally, and within medical law specifically. It first seeks to establish the context within which critical analysis of law and legal measures takes place, and develops an argument that critiques should focus on political norms. Entailed in this claim is the contention that positions that seek to address controversial social problems can not resort simply to moral philosophy. It then provides a brief account of political liberalism that can contain and expose normative constraints on questions of moral and social contention. The focus then moves to a more direct reflection on medico-legal analysis. Considering both medical law as a discipline, and the study of end-of-life issues, the argument highlights the range of relevant issues that must be accounted for, and addresses the question of whether these are well conceived as ones of medical law. It is argued that a political framing offers a good general analytic context, but that when working in legal sub-disciplines analysts risk allowing 'locally' pertinent norms to dominate or unduly constrain wider debate. Thus it is questioned whether 'medical law' provides a coherent frame for social questions related to assisted-dying.     

The Pull of the Policy Audience

Much research in the sociology of law seeks to play a role informing policymakers about the effects of particular policy initiatives and to participate in debates about how to use law as an instrument of public policy. The paper examines the origins of policy studies in legal realism and describes the way contemporary law and society scholars selectively appropriate aspects of the realist heritage while ignoring others. Particular attention is paid to the ways in which those scholars separate policy from politics and operate as if policy focused research were not itself political. The paper traces the pull of the policy audience and the separation of policy from politics through a close examination of several widely respected examples of sociolegal scholarship. In addition, an effort is made to assess the impact that the desire to speak to the powerful has had in shaping what constitutes acceptable scientific practice and in shaping the domain of study. The paper concludes by arguing that the sociology of law would benefit from an effort to interrogate the basic premises which inform policy debate and that such an interrogation itself requires greater distance from the policy audience.     

Law,ideology and social change: An analysis of the role of law in the construction of corporate crime

This paper explores recent efforts to theorize the potential of law as an agency for progressive social change in the context of the debate over corporate crime. Drawing on feminist experience with criminal law reform in the area of domestic violence, the author argues that the strategy of criminalizing corporate violations needs to be problematized, and that attention should also be focussed on exploring other avenues for progressive legal and political struggles aimed at the control of corporate crime.