改革开放30年中国社会法学的理论贡献

改革开放30年,中国社会法学做出了重要的理论贡献,这些理论贡献主要体现在劳动关系契约化理论、劳动者弱者理论、劳动权范畴论、劳动合同立法论、社会保障制度建构论、劳动争议处理制度改革论和非典型劳动关系规制论等诸多理论层面。     

完善劳动保障法律制度研讨会综述

20 0 3年1 1月1 9日至2 0日,由中国劳动法学研究会主办的“中国劳动法学研究会会员代表大会暨完善劳动保障法律制度研讨会”在北京举行。现将研讨情况综述如下:一、劳动法学研究方法王全兴认为,为“回应”我国社会经济实践,劳动关系研究应从一般转向特殊,如下岗、借调、兼职、劳动派遣等特殊现象中的劳动关系和商业推销员、计程车司机、家内劳动者、高级职员、农民工、灵活就业者等特殊劳动者的劳动关系。这种研究,可补充和丰富一般劳动关系理论,进而深化劳动法学的研究。冯彦君强调我国劳动法学研究应该从斗争范式转变到合作范式。斗争范式…     

生命法学研究略论

生命法学是研究生命法这一特定社会现象及其发展规律的部门法学。其核心是生命关系的法律调节理论。关于生命关系的探讨、立法及司法实践，古已有之、广亦有之。当代以前的生命关系法律调节基本停留在保卫生命与健康的水平上，当代则发生了突破性的变化，开始进入“创生”的高度，从而使得生命法学的研究领域有突变性的拓展     

“劳动关系”判定标准的反思与重构

在劳动法学理论与司法实践中,主体性判断和内容性判断(从属性判断)为两个基本的判断标准。我国劳动立法虽采取了主体性判定标准,但由于未对"劳动者"和"用人单位"这两个关键语词进行立法释义,主体性判断标准操作性较差甚至名存实亡,理论与实践上不得不过度依赖内容性判定标准,即进行单一的从属性判断,这往往导致劳动关系在范围上判定得过宽或过窄。反思传统劳动关系判定标准之得失,探索确立契合当代劳动关系发展形态和趋势的综合性判定标准,是大势所趋,也是当务之急。     

习近平立法思想论要

习近平的立法思想是习近平法治思想体系的有机组成部分,也是马克思主义法学中国化进程的最新理论成果。习近平把当代中国立法发展放置到协调推进“四个全面”战略布局这个中国在新的历史条件下治国理政总方略中加以认识和把握,深刻阐述了完善中国特色社会主义法律体系、改革和完善立法体制、深入推进科学民主立法、实现立法和改革决策相衔接等当代中国立法发展领域中的一系列重大理论与实践问题,形成了大变革时代进程中全面推进法治中国建设的系统化的立法理论逻辑,因而是指导和推进当代中国立法发展及其现代化的科学指南。     

实证主义法学的成因探析

分析实证主义对于对于今天的理论研究具有日益重要的地位和作用,体现在法学领域就是分析实证主义法学的运用。关于分析实证主义法学的形成,本文从欧洲政治环境、殖民地扩张的客观需要、自然科学领域成熟的研究方法以及法的成文化运动提供的研究对象等方面对这一流派进行了分析。目的是通过历史的考察,发现历史中那些恒定但却历久常新的理念,为当代的思考与实践提供参照。     

婚姻的意思自治理论与实践

由于婚姻家庭承载着特殊的社会价值与职能,结合我国当前的国情,意思自治原则在婚姻家庭领域的扩张以及婚姻契约化进程需要循序渐进,婚约制度和夫妻财产制度要进行完善,确保个体权利与自由的充分发挥;同时,在婚姻家庭涉及的社会公共利益领域、道德领域,不能依据当事人意思自治对其负有的身份性权利加以变更。婚姻法领域意思自治原则扩张的内涵与基础,在肯定婚姻家庭领域实行意思自治的同时也需要国家公权力的适当介入与干预。     

行进中的中国刑事诉讼法学:关键词展开——2007年刑事诉讼法学研究述评

我国刑事诉讼法学研究在中国当下社会的不断变革中而"日新月异"地行进着。"追求和谐、关照权利、规范权力、创新理念、服务实践"构成了2007年刑事诉讼法学研究的关键词,以之展开对过去一年本学科学术发展的忠实记录和客观检讨,将能够对我国刑事诉讼法学研究乃至我国法治进程的未来走向得出富有意义的启示。     

重庆市法学会法制系统科学研究会即将成立

<正> 为了适应世界范围内新技术革命的挑战以及我国经济体制、科技教育体制改革的新形势,尽快将新技术成果和现代科学方法(控制论、信息论和系统论)引进法学理论研究和司法实践领域,以推动我国法制建设、司法实践和法学研究的现代化进程,为我国经济体制改革作出贡献,通过充分酝酿,重庆市法学会决定     

大学生法学教育现状分析以及解决对策

我国实行的"依法治国"战略,"法治"国家目标的确立,带动了高校法学教育的发展,同时为了适应当代经济、政治、社会的发展,大学法学教育正在广泛普及。然而由于我国法学教育制度本身存在的缺陷、师资力量欠缺等原因,导致法学教育目标不明确、理论和实践相脱节等现状的发生。解决法学教育这些弊端,需要从法学教育制度本身着手,改进教学模式、方法、内容等,将理论与实践相结合,营造学法、遵法、崇法的氛围。     

Bhartṛhari and Maṇḍana on Avidyā

The concept of avidyā is one of the central categories in the Advaita of Śaṇkara and Maṇḍana. Shifting the focus from māyā, interpreted either as illusion or as the divine power, this concept brings ignorance to the forefront in describing duality and bondage. Although all Advaitins accept avidyā as a category, its scope and nature is interpreted in multiple ways. Key elements in Maṇḍana’s philosophy include the plurality of avidyā, individual selves as its substrate and the Brahman as its field (viṣaya), and the distinction in avidyā between non-apprehension and misapprehension. A closer investigation shows that Maṇḍana is directly influenced by Bhartṛhari’s linguistic non-dualism in developing the concept of avidyā. This study also compares other key constituents such as vivartta and pariṇāma that are relevant to the analysis of avidyā. As the concept of counter-image (pratibimba) emerges as a distinct stream of Advaita subsequent to Maṇḍana, this study also compares the application of pratibimba in the writings of Bhartṛhari and Maṇḍana.     

Unraveling the <Emphasis Type="Italic">Kāvyaprakāśa</Emphasis>: Jayadeva Pīyūṣavarṣa’s idiosyncratic sequence of topics in the <Emphasis Type="Italic">Candrāloka</Emphasis>

In his twelfth century alaṃkāraśāstra, the Candrāloka, Jayadeva Pīyūṣavarṣa reverses the sequence of topics found in Mammaṭa’s Kāvyapr-akāśa, an earlier and immensely popular work. With such a structural revisionism, Jayadeva asserts the autonomy of his own work and puts forth an ambitious critique of earlier approaches to literary analysis. Jayadeva investigates the technical and aesthetic components of poetry in the first part of the Candrāloka, prior to his formal semantic investigations in the latter half of the text, thus suggesting that aesthetic evaluations of poetry beneficially inform scientific investigations of language. Jayadeva’s organization of his chapters on the semantic operations, moreover, intimates that the study of suggestive and metaphoric functions of language clarifies our understanding of denotation, which is conventionally understood to be the primary and direct path of verbal designation.     

The Supreme Array Scripture: A New Interpretation of the Title “Gaṇḍavyūha-sūtra”

This article argues for a new interpretation of the Sanskrit compound gaṇḍa-vyūha as it is used in the common title of the Mahāyāna text the Gaṇḍavyūha-Sūtra.The author begins by providing a brief history of the sūtra’s appellations in Chinese and Tibetan sources. Next, the meanings of gaṇḍa (the problematic member of the compound) are explored. The author proposes that contemporary scholars have overlooked a meaning of gaṇḍa occurring in some compounds, wherein gaṇḍa can mean simply “great,” “big” or “massive.” This general sense is particularly common in the compound gaṇda-śaila (a “massive rock” or “boulder”) and is found in such texts as the Bhāgavata Purāṇa, the Harivaṃśa and the Harṣacarita. Following the discussion of Gaṇḍa, the author examines the term vyūha (“array”) as it is used in the Gaṇḍavyūha-sūtra. The article concludes with the suggestion that a more appropriate translation of the Gaṇḍavyūha-sūtra would be “The Supreme array Scripture.”     

Evaluation of six presumptive tests for blood, their specificity, sensitivity, and effect on high molecular-weight DNA

Luminol, leuchomalachite green, phenolphthalein, Hemastix, Hemident, and Bluestar are all used as presumptive tests for blood. In this study, the tests were subjected to dilute blood (from 1:10,000 to 1:10,000,000), many common household substance, and chemicals. Samples were tested for DNA to determine whether the presumptive tests damaged or destroyed DNA. The DNA loci tested were D2S1338 and D19S433. Leuchomalachite green had a sensitivity of 1:10,000, while the remaining tests were able to detect blood to a dilution of 1:100,000. Substances tested include saliva, semen, potato, tomato, tomato sauce, tomato sauce with meat, red onion, red kidney bean, horseradish, 0.1 M ascorbic acid, 5% bleach, 10% cupric sulfate, 10% ferric sulfate, and 10% nickel chloride. Of all the substances tested, not one of the household items reacted with every test; however, the chemicals did. DNA was recovered and amplified from luminol, phenolphthalein, Hemastix, and Bluestar, but not from leuchomalachite green or Hemident.     

Monks Who Have Sex: Pārājika Penance in Indian Buddhist Monasticisms

In the study of Buddhism it is commonly accepted that a monk or nun who commits a pārājika offence is permanently and irrevocably expelled from the Buddhist monastic order. This view is based primarily on readings of the Pāli Vinaya. With the exception of the Pāli Vinaya, however, all other extant Buddhist monastic law codes (Dharmaguptaka, Mahāsāṅghika, Mahīśāsaka, Sarvāstivāda and Mūlasarvāstivāda) contain detailed provisions for monks and nuns who commit pārājikas but nevertheless wish to remain within the saṅgha. These monastics are not expelled. Rather, they are granted a special status known as the śikṣādattaka. In this paper I explore the rules. concerning pārājika penance and the śikṣādattaka with specific regard to monastic celibacy. Given that five out of six extant law codes recognise this remarkable accommodation to the rule of celibacy, I argue that we must look to Vinayas other than the Pāli Vinaya if we are to arrive at a nuanced and representative view of Indian Buddhist monasticism.

Grant me chastity and continence, but not yet. Augustine of Hippo (354–430 C.E.)

     

Family breakdown and the ‘Welfare Child’ in 19th and 20th century Britain

This article traces new cycles of interest in past children as distinct from past childhood. Recent work highlighting that a conceptualisation of childhood existed even in periods with few written records closes the chapter begun by Philippe Ariès in 1960. Instead, there has been a new surge of interest in children on the edges of family life, as well as children in similarly liminal positions between the worlds of adults and children: runaways, delinquents and orphans. Several themes in the literature are identified, based on the conflicting ideas of ‘body/mind’, ‘victim/threat’, ‘needs/rights’. It is noted that researchers are using more imaginative ways of reaching the lived experience of children than the family or institutional framework, and that an increasing link is drawn between historical and modern concerns such as child abuse and the care of ‘at risk’ children.     

Vedic Language and Vaiṣṇava Theology:Madhva’s Use of Nirukta in his Ṛgbhāṣya

This article explores the way in which Madhva (1238–1317), the founder of the Dvaita Vedānta system of Hindu thought, reformulates the traditional exegetic practice of nirukta or “word derivation” to validate his pluralistic, hierarchical, and Vaiṣṇava reading of the Ṛgvedic hymns. Madhva’s Ṛgbhāṣya (RB) is conspicuous for its heavy reliance on and unique deployment of this exegetical tactic to validate several key features of his distinctive theology. These features include his belief in Viṣṇu’s unique possession of all perfect attributes (guṇaparipūrṇatva) and His related conveyability by all Vedic words (sarvaśabdavācyatva). Such an understanding of Vedic language invokes the basic nirukta presupposition that words are eternally affiliated with the meanings they convey. But it is also based onMadhva’s access to a lexicon entitled Vyāsa’s Nirukti with which his critics and perhaps even his commentators seem to be unfamiliar.While the precise status of this text is the subject of ongoing debate, Madhva’s possession of special insight into the sacred canon is established in part by his unique claim to be an avatāra of the wind god Vāyu and a direct disciple of Viṣṇu Himself in the form of Vyāsa₁. Thus, Madhva’s use of nirukta invokes his personal charisma to challenge not only conventional understandings of the hymns but traditional exegetic norms. Madhva’s provision of an alternative tradition of nirukta provoked sectarian debate throughout the Vijayanagara period over the extent to which one could innovate in established practices of reading the Veda. Articulating the Veda’s precise authority was a key feature of Brahmin debates during this period and reflects both the empire’s concern with promoting a shared religious ideology and the competition among rival Brahman sects for imperial patronage that this concern elicited. By looking at how two of Madhva’s most important commentators (the 14^th-century Jayatīrtha and the 17^th-century Rāghavendra) sought to defend his niruktis, this article will explore how notions of normative nirukta were articulated in response to Madhva’s deviations. At the same time, however, examining Madhva’s commentators’ defense of his niruktis also demonstrates the extent to which Madhva actually adhered to selected exegetic norms. This reveals that discomfort with Madhva’s particular methods for deriving words stemmed, in part, from a more general ambivalence towards this exegetical tactic whose inherent open-endedness threatened to undermine the fixity of the canon’s very substance: its language. Vyāsa’s Nirukti is one of several ”unknown sources” cited in Madhva’s commentaries whose exact status continues to be debated. Some scholars (e.g. Rao, Sharma, Siauve) maintain that these texts are part of a now lost Pāṅcarātra tradition that Madhva is attempting to preserve. This may be true for many of these citations. However, in addition to claiming to be both an avatāra of Vāyu and Viṣṇu-as-Vyāsa’s student, Madhva states in several places (e.g., VTN 42, RB 162) that the canon has suffered loss during transmission and that only Viṣṇu can reveal it in its entirety. Thus, it is possible that Madhva intends texts like Vyāsa’s Nirukti to be viewed as part of an ongoing and corrective revelation, a notion that is compatible with many Vaiṣṇava traditions (Halbfass, 1991: 4).     

Policing Outlawed Desire: ‘Homocriminality’ in Beat Spaces in Australia

Drawing on interview data of gay men who have had their behavior in public spaces scrutinised by agents of the law for signs deviance, this article explores the historical characteristics of police animosity towards such conduct in Australia. This entails examining encounters between police and gay men who pursue desire in ‘beat’ (or ‘cottage’ to the use the UK term) spaces. Exploring why these outlaw gay male subjects are so abject and troubling to the law, the discussion documents how law’s desire to regulate gay men plays out in the masquerade of ‘plain-clothes’ agent provocateur operations where police entrap gay men by mimicking gay bodily appearances, gestures and mannerisms. This article also examines how police regulation of gay desire functions as a form of violence that delimits expressions of same sex desire in public spaces. A key theme that underpins the analyses in this paper is that the policing of desire in ‘beat’ spaces helps produce qualities of illicitness and dangerousness and that this, in turn, fuels the circuit of desire at play between gay men and agents of the law.

Interrupting the Myth of the <Emphasis Type="Italic">Partage</Emphasis>: Reflections on Sovereignty and Sacrifice in the work of Nancy,Agamben and Derrida

Agamben traces the bio-political essence of modern politics to the non-sacrificial killing of Homo Sacer in Roman law. Nancy, on the other hand, links the history of Western politics to the fundamental logic of sacrifice in Western metaphysics. He nevertheless contemplates the possibility that Western societies may finally have arrived at the threshold of a non-sacrificial existence. Derrida seeks to resist the sacrificial logic of Western metaphysics and politics, but nevertheless appears to accept it as an irreducible fact of human co-existence. Unlike Nancy, he envisages no actual or actualised beyond beyond the realm of sacrificial metaphysics and politics. He thus can be said to interrupt Nancy’s ‘myth’ of a non-sacrificial partage. This article compares these three philosophical stances in the hope of throwing more light on the role of sacrifice in the law and politics of our time. Professor of Law, Rand Afrikaans University. Conversations with Ann van Sevenant, Carol Clarkson, Louise du Toit, Peter Fitzpatrick, Costas Douzinas and Adam Thurschwell gave impetus to many of the themes developed in this article. Concomitant shortcomings and inaccuracies, as always, are mine.