中华法系的百年历史叙事

回顾中国现代法学的世纪历程,中华法系的历史叙事主要在进化论、民族论和法治论三种语境中展开。不同语境中的法史学者,通过将中华法系与其他法系相比较,揭示出了彼此有别的中华法系之历史面貌。在进化论语境中,中华法系因其古.老而落后,丧失了型构现实生活秩序的生命力,需整体性地予以批判和否定。在民族论语境中,中华法系因其系统性、连续性和民族性而独具特色,整理、发掘、重述其历史谱系,既有助于增强民族文化自信力,也为重建“新中华法系”提供了重要的精神前提。在法治论语境中,中华法系以其“治乱之道”和“良法善治”的血缘伦理身份内涵表明,在前现代社会中法律不可能获得型构社会生活秩序的权威地位。法制现代化是不同语境下中华法系之历史叙事的共同追求,中华法系研究的百年学术史,实质上是一部追求法治文明的中国现代精神史。     

Nineteenth-Century Lawyers and Railway Capitalism: Historians and the Use of Legal Cases

Abstract

The railway was a key factor in nineteenth-century economic development. R.W. Kostal considered the interaction of the industry with lawyers in his book Law and English Railway Capitalism 1825–1875. Yet his conclusion that the law coped badly with the new industry is vitiated by his failure properly to analyse the way the courts applied legal doctrine. In areas such as preincorporation liability for railway companies’ debts, rating and compulsory purchase, the courts applied well-established principles. Even new law in cases like Priestley v Fowler can only be understood in terms of common law principles.     

The Role of Narratives in Legal Education

The significance of narrative as the primary form of human communication forms the basis of this paper. Following a brief consideration of the natural inter-relationship between law and narrative, the author goes on to discuss the more specific application of a narrative approach to legal scholarship and legal education. The paper sets out the findings of a practical research project that took as its inspiration James Boyd White’s portrayal of the law student as a creative and imaginative thinker, and Martha Nussbaum’s claim that it is through the power of ‘narrative imagination’ that we gain a broader appreciation and understanding of humanity. It explains how a group of law students participated in ‘the Narrative Research Project’ at the University of Leicester; participating in story-telling seminars and creating their own fictional narratives from appellate case reports. It describes the students’ reaction to the project as heartening in the sense that they became more aware of the significant role that human actors play in legal proceedings, but it also expresses doubts over the extent to which such an approach can, by itself, cultivate humanity in the law school.     

Narratives of Force: The Presence of the Writer in International Legal Scholarship

Netherlands International Law Review - In this article I use the notion of ‘plot’ to uncover where in their texts international legal scholars are ‘present’, directing...     

Social Roles and Legal Rights: Three Women in Early Nineteenth-Century India

In the early decades of the nineteenth century the small European societies in Madras (now Chennai) and Bombay (now Mumbai) were divided by disputes of such intensity that the authorities in London feared for the future of British power in India. The divisions were legal and social. In law, the Governors and the Supreme Courts of both cities contested the scope of their respective roles with the arguments focusing on the rights of Indians. Again and again, government took alarm at the ‘pro-Indian’ views of reforming judges. The debates were reflected in European social divisions, thereby making them all the more intransigent; legal allegiance became linked to social allegiance. It was this mixture of the legal and the social which gave the wives and other female relatives of the judges a role in the process of reform. Normally confined to multiple pregnancies and restrained social functions, the divisions in European life gave these women an opportunity to influence legal change. Without making official public statements they took part in the development of ideas about Indian rights.     

Preparing to Be Colonized: Land Tenure and Legal Strategy in Nineteenth-Century Hawaii

In the late nineteenth and early twentieth centuries, throughout the Pacific Rim, European and American colonizers reorganized indigenous systems of property rights in land to make them look more like European property systems, with disastrous effects for the indigenous people involved. The very first of these schemes, however, was the Māhele of 1845–1855, which took place not in a colony but in the independent Kingdom of Hawaii. Why did the Hawaiians do this to themselves? I argue that the Māhele was a sophisticated and partially successful response to the prospect that Hawaii would soon be colonized. The object of the Māhele was to ensure that in the event of annexation, Kamehameha III and other elite Hawaiians would not be dispossessed of their landholdings. The strategy was to convert those landholdings into a legal form that would be recognized by an incoming colonial government—whether American, British, or French—as private property.     

Demography of the Legal Profession and Racial Disparities in Sentencing

The demography of the legal profession has changed rather dramatically in recent decades, yet the consequences of a more racially and ethnically diverse pool of lawyers for the administration of justice have not received significant attention. The present research examines how the racial composition of the local legal profession affects one facet of criminal law: the sentencing of convicted defendants. Building on prior work in the fields of law, stratification, and mobility, we hypothesize that racial and ethnic disparities in sentencing are mitigated where the legal profession is more diverse. In line with this hypothesis, analysis of data from a sample of large urban counties taken between 1990 and 2002 shows that the black-white racial disparity in sentencing attenuates as the number of black attorneys in the county increases, net of the percent black in the county and other possible confounding variables. Comparable results are found for Hispanics. The findings are discussed in the context of a demographically changing legal profession and prior work on racial disparities in the justice system.     

文化差异对法律及经贸英语翻译的影响

人类的翻译活动受诸多因素的影响,其中包括文化差异。本文作者从英汉翻译实践出发,列举了大量论据,证明中国文化与西方文化之间的差异对法律及经贸英语翻译具有重大影响,值得人们认真研究和对待。     

Structured Like A Monster: Understanding Human Difference Through A Legal Category

This article will argue that the legal idea of the monster offers to inform contemporary thinking in relation to outsiders. Drawing on the work of Foucault it will be contended that the process, whereby at least some human beings are positioned as outsiders, is structured like a monster. That is to say, at least some constructions or representations of human difference, both legal and non-legal, are informed by the monster category. The article will think through and unpack Foucault’s the idea of the monster, and his sufficient and necessary conditions of monster production. In the process, the article will identify two contemporary figures that bear the legacy of this legal category. These are the figures of Foucault’s abnormal individual and the human/animal hybrid of genetic medicine, figures that can neither be reduced to products of law or disentangled from its domain. An emphasis on the importance of the template of the monster in understanding these contemporary figures points to its relevance to legal scholarship within fields such as gender, sexuality and race, and bioethics respectively.

两大法系形成理念之差异——以两大法系的民法存在形式为视角

本文试图以两大法系的民法存在形式为视角,探讨隐藏在法律制度背后,对两大法系的法律制度形成、发展起着指引作用的形成理念上的差异,并以此为基础探讨我国民事法律建构理念之取向。     

The Politics of Racial Disparity Reform: Racial Inequality and Criminal Justice Policymaking in the States

Racial inequalities in criminal justice are pressing problems for policymakers. Prior literature suggests elected officials promulgate punitive, racially disparate criminal justice policies due to partisanship and racial fears, but scholarship has yet to explain how and why elected officials address racial problems in criminal processing. This article introduces the framework of racial disparity reform policymaking. A racial disparity reform is a policy that seeks to reduce distinctions in criminal justice institutions’ treatment of racial groups. Elected officials pursue these policies due to ideological beliefs in civil rights ideals and political interests in appearing to solve social problems. Using an original database of policy enactments, this article first presents the distribution and types of reform measures adopted by elected officials in all 50 states between 1998 and 2011. It then examines social and political explanations for when state legislatures and executives adopt racial disparity reforms. Policy enactment is predicted by worsening problems of racial disproportion in criminal processing, Democratic control of elected branches, and the absence of judicial efforts to improve racial fairness within a state’s criminal justice system. Similar dynamics encourage the development of different measures types within policies. Such ideological and problem-solving explanations for racial disparity reform show a potential for elected officials to forge more racially just criminal justice practices.     

Telling the Refugee Story: The `Ordinary Australian', the State of Australia

By international standards, fewuninvited asylum-seekers arrive in Australia.However, in 2001, a conservative federalgovernment trailing in the opinion pollsreversed its fortunes and won the November 2001election largely, it seems because of its``tough' refugee policy, which the Oppositioncould only feebly endorse, deeming oppositionelectorally suicidal. Using some insights fromLacan and writers in the Lacanian tradition,this paper examines how the refugee story waswritten, and why it was that the intentions ofits authors so successfully shaped itsreception by the majority of the electorate.     

法律文化差异与中美侦查制度

中美两国的法律文化在中央集权与地方分权、社会本位与个人本位以及权力至上与法律至上等层面的取向上存在明显的差异。这些差异深刻地反映在两国侦查制度在侦查组织制度、侦查行为、侦查程序结构等诸多方面的差异之中。比较研究表明,美国为其侦查制度在法律文化中政府权力向个人权利的妥协的价值取向而付出了相当的代价;同时,我国在借鉴与吸收某些西方的诉讼理念与制度的过程中,不应忽视中西方在法律文化上存在的差异。     

Narratives as the Cultural Context of Law

Law can be characterised as a highly specialized tool with strong social impact requiring social legitimization and acceptance. Law is also specific, abstract world. World that needs words to exist. To understand law and to share its content it is important to focus on narratives related to it. The article deals with the importance of narration in law as the consequence of discursive peculiarity of law and its dependence on the acceptance of societies. Law is culturally conditioned, and by means of narrative can combine the expectations of society concerning legitimation with legal rationality. The law cannot function exclusively as an abstract and formal structure nor an administrative apparatus, with own ways of legitimization or justification. Through social acceptance law gains its real form, but at the same time it is subordinated to cultural patterns. Changes in narratives change the law and then the real world. The article shows possible ways of analysis of narratives, narrative strategies and forms that are present in law.

     

Making a Difference? Legal Representation in Employment Tribunal Cases: Evidence from a Survey of Representatives

Representatives play a critical rôle in Employment Tribunal(ET) cases in the UK. Using a recently published survey of representativesin ET cases, this article explores the particular rôleof lawyers. The key results are that lawyers may both shortenand lengthen case resolution by encouraging early withdrawaland late tribunal resolution of cases respectively. They alsoappear to impact on the terms of settlement, achieving betteroutcomes for their clients than alternative representative types.