Genealogy and Jurisprudence: Nietzsche, Nihilism, and the Social Scientification of Law

In Twilight of the Idols, Nietzsche presents a history of metaphysics that can also be read as a history of jurisprudence. Nietzsche shows how—via Platonism, Christendom, Kantianism, and utilitarianism—the “real” or “true” world of ideals gives way to an “apparent” phenomenal world that is itself ultimately brought into question. This article shows how 20th-century legal thought, broadly construed, also moves away from “ideals” of law toward an understanding of law as observable social phenomena. It suggests that the move to the “apparent” world in legal thought raises questions similar to those raised by Nietzsche's work: Does sociological law point to a nihilistic destruction of the legal tradition or to a joyous possibility of overcoming that tradition?     

新的法律虚无主义之批判——基于民事司法的视角

古今中外均曾有过形形色色的法律虚无主义思潮。新中国成立以来,曾一度盛行完全否认法律作用的法律虚无主义,使得中国社会全面陷入了"无法无天"的混乱状况,甚至到了崩溃的边缘。当前,中国特色的社会主义法律体系已经形成,法治的观念亦已初步深入人心。然而,近些年来,在我国民事司法领域却悄然出现了新的法律虚无主义倾向与实践,集中表现为轻视、否认、虚置立法权威与法律规范的"违法司法"与"法外操作"等。我们坚决反对任何形式的法律虚无主义,倡导在严格遵守现行立法与遵循司法规律的前提下适度地能动司法,这是社会主义司法原则不可动摇的基本要求,也是建设社会主义法治国家的必由之路。     

A genealogy of hostility: parental alienation in England and Wales

ABSTRACT

This article explores the emergence and development of parental alienation (PA) in England and Wales. It considers the background into which PA first appeared in private law proceedings concerning children in England and Wales, and examines how it progressed in the case law through the changing political and discursive context of private family law from 2000 to the end of March 2019. A clear pattern emerged of, initially, parental alienation syndrome and subsequently PA being raised in family proceedings and in political and popular arenas in response to concerns about and measures to address domestic abuse. The case law revealed a high incidence of domestic abuse perpetrated by parents (principally fathers) who were claiming that the resident parents (principally mothers) had alienated the children against them, which raises questions about the purpose of PA. More recently, a PA ‘industry’ appears to have amassed comprising experts, therapists and lawyers, advocating transfers of children’s care from ‘alienating’ mothers to non-resident fathers, as well as PA therapy for children and parents. While PA has had a chequered history and is not without its critics, it has become part of the discursive repertoire of current family law, with increasingly harsh consequences for women and children.     

Urban homicide: Still the same

We use 1984–1986 data to estimate lifetime risks of being murdered in each of 50 large American cities and then compare these projections to others made earlier from 1971–1972 and 1976–1977 data. We find strong constancy over time in the average urban resident's murder risk (essentially a 1 in 68 chance of eventually being slain). Moreover, we find a high stability in the dispersion of risk by region, race, and city size and in the relative rankings of the 50 cities by murder risk. We comment briefly about such recent phenomena as the proliferation of crack and the resumption of capital punishment.Throughout this paper, we use the words murder, homicide, killing, and slaying interchangeably, meaning in all cases murder and nonnegligent manslaughter as defined by the FBI.     

The incest offender,power, and victimization: Scales on the same dragon

It is contended that incest is a specific case of a larger problem, that being inappropriate use of power, resulting in victimization of a weaker person. The article is primarily an exploration of ideas regarding root causes of such victimization. It is proposed that implied ownership is present in certain traditional family constellations in our society. It is further proposed that many factors, including this implied ownership, contribute to a profound lack of empathy on the part of the offender. Numbered among these factors are our individualistic, compartmentalized culture, developmental deficits, and overt choices on the part of the offender. Concluding comments call for further reflection and attention to the issues raised, with suggestions regarding important areas for focus and investigation.     

In Force Without Significance: Kantian Nihilism and Agamben’s Critique of Law

In Homo Sacer, Giorgio Agamben makes the claim that Kant’s moral philosophy is prophetic of legal nihilism and modern totalitarianism. In doing so, he draws an implicit parallel between Kantian ethics of respect and autonomy, and the authoritarian constitutional theory of Carl Schmitt. This paper elucidates and evaluates this claim through an analysis of Agamben’s assertion that the legal condition of modernity is a nihilistic law that is ‘in force without significance’. I argue that the theoretical continuity between totalitarianism and the Moral Law is the problem of the undecidable, which arises when the empty ground of normative judgment comes to light.     

Past victimizations and dating violence perpetration in adolescence: the mediating role of emotional distress and hostility

This study aimed to understand the nature of the relationships between three forms of past victimizations (exposure to interparental violence in childhood, sexual harassment by peers since beginning high school, prior experience of dating violence), physical dating violence perpetration by adolescents, and anger-hostility and emotional distress. The sample was composed of 1,259 high school students aged between 14 and 19 years who answered self-report questionnaires. Mediation analyses were conducted according to Baron and Kenny's approach. Logistic and linear regression analyses reveal that being victim of sexual harassment by peers and of dating violence are associated to physical dating violence perpetration via a partial mediating effect of hostility in girls. Contrary to results with girls, there is a complete mediating effect of emotional distress for boys. Results suggest that dating violence prevention and intervention strategies could be adapted according to gender and that sexual harassment should be addressed.     

Parental warmth amplifies the negative effect of parental hostility on dating violence

Past research has documented the positive association between parental hostility and offspring involvement in intimate partner violence. Researchers, practitioners, and parents typically adopt the standpoint that parental warmth may counter these negative lessons. However, Straus and colleagues argue that parents foster IPV to the extent that they teach their child that verbal and physical aggression are a normal and legitimate component of loving relationships. A strict interpretation of social learning theory would suggest that these lessons are more, not less, likely to occur when parental hostility is interspersed with displays of affection. The present study tests this idea using data from 2,088 undergraduate students from a large university in the Southeast. Consistent with Straus' arguments, findings suggest that, rather than attenuating the negative effects of hostility, supportive interactions seem to amplify the probability that offspring will emulate aggressive behaviors in their own romantic relationships. The same is true for the effects of harsh parenting for women. It seems that the best way parents can avoid contributing to their child's chances of being in a violent dating relationship is to eschew family interaction involving verbal and physical aggression.     

Cocaine-associated rhabdomyolysis and excited delirium: different stages of the same syndrome.

Previous case reports indicate that cocaine-associated rhabdomyolysis and excited delirium share many similar features, suggesting that they may be different stages of the same syndrome. We tested this hypothesis by comparing data from 150 cases of cocaine-associated rhabdomyolysis reported in the medical literature with data from an autopsy registry for 58 victims of fatal excited delirium and 125 victims of fatal acute cocaine toxicity. Patients with rhabdomyolysis are similar to victims of fatal excited delirium with regard to age; gender; race; route of cocaine administration; the experiencing of excitement, delirium, and hyperthermia; and the absence of seizures. Compared with victims of fatal acute cocaine toxicity, patients with rhabdomyolysis are different with regard to each of these variables. Compared with victims of fatal acute cocaine toxicity, both victims of rhabdomyolysis and fatal excited delirium are more likely to be black, male, and younger; to have administered cocaine by smoking or injection; and to have experienced excitement, delirium, and hyperthermia; they are also less likely to have had seizures. Because cocaine-associated rhabdomyolysis and excited delirium have similar clinical features and risk factors, occur in similar populations of drug users, and can be explained by the same pathophysiologic processes, we conclude that they are different stages of the same syndrome. It appears that this syndrome is caused by changes in dopamine processing induced by chronic and intense use of cocaine rather than by the acute toxic effects of the drug.     

Singing from the same sheet: computational melodic similarity measurement and copyright law

Musical plagiarism is an area of law that is not only of interest to lawyers but captures the curiosity of the public, induces apprehension in the composer and now intrigues the computer scientist. Attention increases in the case of celebrated artists when the revenue is likely to be significant, and when the allegation is one of a perceived similarity between the infringing and infringed works. Despite the broad interest and frequently high commercial significance of this issue, there has been little systematic research into what constitutes musical plagiarism from either a technical or perceptual perspective. This article discusses some suggestions made to date for introducing a technical measurement of musical similarity in copyright disputes before presenting our own computational system. The novelty of our proposal arises from an interdisciplinary approach combining computational, musicological, and psychological perspectives to emulate legal principles, mimic the reasonable listener as well as copy the type of evidence often presented in these cases.     

Domestic violence and high conflict are not the same: a gendered analysis

In child custody decision-making experiences of domestic violence and high conflict are not the same. Legislative reform has not yet been guided by the parent voice to inform differentiated responses that keep women and children safe. Available literature in child custody decision-making focuses on outcome research regarding children’s adjustment and well-being. Debates about types of post-separation arrangements have yet to find agreement in three under-researched areas: (a) high conflict, (b) domestic violence; and (c) children under four. Yet, Canadian legislation supports shared parenting arrangements that privilege the dominant, powerful parent in situations of domestic violence. Based on a Canadian study that explores the parent perspectives and experiences of child custody decision-making, this paper privileges a sub-group of participants; five women, all survivors of domestic violence; defined here as both physical violence and coercive control. Data collection includes one-on-one tape-recorded interviews. Thematic analysis reveals that shared parenting is neither the goal, nor does it meet the needs of these women. The findings illuminate the importance of differentiating parent experience as distinct groups, and reinforces the notion of the state’s role in the reproduction of gendered power. Legislative reform and collaborative community practices are critical to facilitate healthy differentiated responses.     

同频音掩蔽试验及其在法医学鉴定中应用的研究

目的应用同频音掩蔽试验观察不同个体最小对侧掩蔽级(MCML)与主观纯音听阈之间的关系,进而通过MCML判定被试者主观真实听阈。方法30例受试者(60耳)分别进行纯音测听,首先测出双耳的纯音听阈,然后应用同频音掩蔽试验测试各个频率的MCML。结果当被掩蔽耳的声强处于阈值时,掩蔽耳的MCML与主观纯音听阈差值在0～30dBHL之间,其中差值在10dBHL以内的占82.4%,在15dBHL以内的占97.1%;当被掩蔽耳的声强处于阈上10dBHL时,掩蔽耳的MCML与主观听阈间差值在0～35dBHL之间,其中差值在25dBHL以内的占90.5%,在30dBHL以内的占98.1%。结论利用同频音掩蔽试验可以准确地判定各个频率被掩蔽耳的真实主观听阈。特别是对于语音范围内听力状况的法医学评定更具有特殊的意义。     

Men and women in the same prison: interpersonal needs and psychological health of prison inmates

The purpose of this study was to investigate the gender differences in the state of interpersonal needs and psychological health of male and female prison inmates who live in the same prison. The authors conducted in-person interviews with 118 male and 70 female inmates. The results show that women present a better interpersonal state and psychological health than do men. For both genders, the consequences of fulfilling or not fulfilling interpersonal needs-specifically, social loneliness and sexual satisfaction-are associated with psychological health. These findings suggest the importance of the state of prison inmates' interpersonal needs in promoting psychological health in the context of the prison, where these needs are generally difficult to be met. Making contacts possible between male and female inmates who are in the same prison might help them to better fulfill some of their interpersonal needs, especially those related to their sexual lives.     

试论同时履行抗辩权

同时履行抗辩权是《合同法》规定的一项新制度,在维护交易秩序、保证交易安全方面具有重要作用.本文对同时履行抗辩权的构成条件、与留置权的区别及适用范围进行了探讨,并对这一制度在实际运用中应注意的问题发表了浅见.     

"同命"真该"同价"?——对死亡损害赔偿的民法思考

死亡损害赔偿并非对生命权本身的救济,而是对因侵害生命权所引起的各种现实利益损失的补偿.由于受害人个体情况的差异,赔偿的结果却千差万别,植根于"同命同价"思维的死亡损害赔偿定额化是对实质平等精神的背离,我国的死亡损害赔偿法不应追随定额化的赔偿模式,而应尽可能地对死亡损害赔偿额进行精细的个别化计算.