The Interpretation of Matching Trace Evidence: A Legal Perspective

本文描述了用于规范法庭科学证言的英美证据法,这些法庭科学证言主要是解释微量物证之匹配的重要性。本文根据即将出版的维基百科全书法庭科学卷部分改编。     

Are Legal Concepts Embedded in Legal Norms?

In this paper, we discuss the problem of the relationship between legal concepts and legal norms. We argue that one of the widespread theories of legal concepts, which we call ??the embedding theory??, is false. The theory is based on the assumption that legal norms are central for any legal system and that each legal norm establishes an inferential link between a certain class of facts and a certain class of legal consequences. Alf Ross??s embedding theory was presented in his famous paper ??Tu?CTu??. According to Ross, the sole function of legal concepts is to simplify normative information. Hence, the use of legal concepts may be a matter of convenience, rather than necessity. We criticize this approach mainly by pointing to the existence of so-called second order substantive concepts, which are not reducible to any determined set of conditional sentences (inferential links). In short, second order substantive concepts play the role of general standards, and general standards are used to provide flexibility for a particular legal system. In addition, general standards are ??value loaded??, since they serve as a frame of reference for judges applying law to particular cases. To understand such general standards as a predefined set of conditionals means to overlook their ??open?? content, and thus their function. In our opinion, the acceptance of the embedding theory means to misinterpret the function of general standards. We also argue that Giovani Sartor??s idea of defective legal concepts doesn??t help to clarify or defend the embedding theory.     

Retracing One’s Steps: Searching for the Ethics of Legal Interpretation

The article discusses the problem of interpretation in law. Are there some criteria by which we can distinguish a good interpretation from a bad one, interpretation from over-interpretation? It is argued in this article that there is always a choice in defining the meaning of a text and this choice can be seen as an ethical one. This article thus studies the question of limits of interpretation by focusing on the ethical elements of interpretation. It is argued here that legal interpretation contains a requirement of justice that shapes the responsibility that the interpreter carries for his choices of meaning. Therefore the ethical elements of interpretation are especially pressing in the interpretation of legal texts.     

Legal Basis and Scope of the Human Rights Clauses in EC Bilateral Agreements: Any Room for Positive Interpretation?

It is well known nowadays that the European Community includes a so-called human rights clause into the framework agreements that it concludes with third countries. It is also widely recognised that, in virtue of the relevant provisions of the Vienna Convention on the Law of the Treaties, such a clause grants the Community a right to suspend the agreement should human rights and/or democratic principles be breached. The question to be explored in the present paper is whether, in the light of its legal basis, the clause fulfils a mere 'negative' or 'sanctioning' function or, by contrast, there is room for the pursuit of positive measures of active promotion of human rights—that is the granting of technical and financial aid. It is argued here that the clauses present an ideal starting point for the pursuit of a comprehensive human rights policy at the EU level. Such a policy should encompass positive measures in the first place, systematic dialogue in the second, and suspension or negative measures of less extent only as ultima ratio in particularly grave cases which cannot be addressed through ordinary (dialogue and aid) routes.     

In Defense of “Pure” Legal Moralism

In this paper I argue that Joel Feinberg was wrong to suppose that liberals must oppose any criminalization of “harmless immorality”. The problem with a theory that permits criminalization only on the basis of his harm and offense principles is that it is underinclusive, ruling out laws that most liberals believe are justified. One objection (Arthur Ripstein’s) is that Feinberg’s theory is unable to account for the criminalization of harmless personal grievances. Another (Larry Alexander’s and Robert George’s) is that it cannot account for public decency laws. I shall reject both of these underinclusiveness objections in favor of one that focuses on the “free floating evil” of corpse desecration. Liberals need “pure” legal moralism (PLM) to explain their support for a criminal ban on mistreatment of the dead. I also argue that while deterrence is plausibly regarded as the primary rationale for criminalizing and punishing wrongs like murder or rape, it is not plausibly regarded as any part of the rationale for criminalizing free floating evils. The point of punishing corpse desecrators has to be either retribution or the promotion of virtue/discouraging of vice. Finally, I consider Feinberg’s reason for rejecting all PLM, namely, that competent adults have a right to personal sovereignty or autonomy, and the state’s duty to respect that right trumps the desirability of punishing or reducing the vice associated with harmless immorality. I argue that Feinberg’s argument here fails because it exaggerates the right’s strength and scope.     

Causes of Legal Procedure Deficiency in Chin

在去滁州市检察院采访路上就听说,前阵子,滁州市检察院两个处长主动提出要辞去领导职务,一问方知,原来两人所领导的处室在去年的全省考评中虽跻身全省前三名,却没能拿到第一,自认为拖了大家的后腿,没颜面再做这个领导。这听来未免夸张,但得知2005年度,滁州市检察院蝉联检察业务     

Vulnerabilities in China’s Legal System

Social Justice Research -     

“There Is Something in That Water”: Race,Nationalism, and Legal Violence

This article analyzes the issue of water contamination in Kashechewan, Ontario, Canada. Through an inquiry into the way in which water contamination in one Aboriginal community was handled by the local and federal governments, this article examines processes of ongoing colonialism in Canada. Drawing on an array of sources, this article explores three features pertinent to this water crisis: historical forms of legal violence, symbolic forms of representation concerning the relationship between nationalism and the governance of race in liberal democracies, and the importance of the case study approach when examining legalized forms of violence. By examining connections between race, nationalism, and legal violence, this article explores the ways in which biopolitical forms of racial governance require an analysis that links legal violence and structural violence to historical and symbolic forms of representation.     

“Ought to” as a Chinese Legal Performative?

The article discusses the legal performatives as used in Chinese legislative language consisting of bixu (shall), yingdang (should or ought to), keyi (may) and bude (shall not) with the illocutionary force of imposing obligations, conferring rights and permission, and prohibition (bude). It postulates that the use of bixu and yingdang is traceable to the influence of the ancient Chinese cultural and legal philosophy of li and fa. It argues that Chinese language is a carrier of messages with built-in Chinese cultural codes and to be able to understand Chinese law, the wider cultural and linguistic contexts must be considered. It also proposes that speech act theory needs to address the interlingual and intercultural variables in the construction of meaning.     

Access to Legal Services in Women’s Shelters

This study examines access to legal services among clients of three Calgary-area domestic violence shelters. The study samples the views of staff and clients at three domestic violence shelters with the goals of improving understanding of clients’ legal service needs, understanding the challenges clients attempting to access legal services encounter and making recommendations for improvement. The authors conclude that clients’ service needs are complex and often involve legal problems, yet shelters face specific organizational barriers to coordinating legal services. The authors recommend that a further analysis be undertaken to examine the legal access patterns of women experiencing domestic violence, to assess the prevalence of the barriers identified in the study and to determine whether further barriers are present in other shelters.     

Form and Agency in Raz’s Legal Positivism

As two parts of one overarching legal positivist project, it is likely assumed that the constitutive elements of Joseph Raz’s analysis of the rule of law are compatible with his thinking on the nature of legal authority. The aim of this article is to call this assumption into question by reading Raz in light of the core, if under-recognised, preoccupation of the jurisprudence of Lon Fuller: namely, the latter’s concern to illuminate the relationship between the distinctive form of law and human agency. This not only opens up a new engagement between Raz and Fuller that was far from exhausted within debates about law and morality, but also reveals tensions between Raz’s analysis of the rule of law and his analysis of legal authority that proponents of Raz’s legal positivism need to address.     

The Legal Subject in Althusser’s Political Theory

There are three dominant conceptual developments in Althusser’s work that suggest the significance of the subject. One is the perpetual work of ideology—its interpellation of individuals. The second is the primacy of the class struggle in relation to the state, and the consequential function of law and rights. The third is the materialism of the encounter as a process without subject. An examination of these three areas (in part, utilising a Foucauldian analysis of subjectivity and power relations) reveals the potentially and strategically important role of legal subjectivity in Althusser’s theory of the political.     

Peircean Semeiotic and Legal Practices: Rudimentary and “Rhetorical” Considerations

Too often C. S. Peirce’s theory of signs is used simply as a classificatory scheme rather than primarily as a heuristic framework (that is, a framework designed and modified primarily for the purpose of goading and guiding inquiry in any field in which signifying processes or practices are present). Such deployment of his semeiotic betrays the letter no less than the spirit of Peirce’s writings on signs. In this essay, the author accordingly presents Peirce’s sign theory as a heuristic framework, attending to some of the most important ways that it might serve to facilitate a semeiotic investigation of our legal practices. He pays close attention to the ways the topics of history, formalism, reductionism, and generality become, from a Peircean perspective, salient features of legal studies.

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Who Files Suit? Legal Mobilization and Torture Violations in Europe

The European Court of Human Rights (ECHR) is the most active international court. After decades with few allegations of human rights abuses, the ECHR docket expanded in the 1990s. Paradoxically, long‐standing democracies can have standardized violation rates of the prohibition against torture that compare to transitional democracies that struggle to protect rights. Yet it is implausible that human rights abuses increased or that established democracies engage in more torture than new democracies. Instead variations in legal mobilization generate the surge and puzzling distribution of European judgments. I argue that discrepancies between the incidence of torture and litigation reflect variations in support structures, where declared violations can reflect the level of support that individuals receive in pursuing claims rather than the incidence of torture. This dynamic is most pronounced for foreign nationals, who typically possess fewer resources than citizens to access legal institutions and encounter popular and official hostility. As a result, much European litigation concerning torture in long‐standing democracies is transnational in character.     

On the Human- Orientated Factors in Grotius＇ Legal Right Thoughts

格老秀斯法权思想是人类思想的精华代表。作为国际法的奠基人,格老秀斯法权思想包含自然法、国际法和万民法内容,为17世纪之后世界秩序的构建制定了法律框架。格老秀斯代表作《战争与和平法》和《海洋自由论》即已凸显了法律的人本化因素。本文通过探讨格老秀斯法权思想中的自然法和国际法理论,分析格老秀斯法权思想中所表现的人道主义、正义、自由、道德和普世主义等人本化因素的内容,为当前中国社会的转型提供参考。