Linguistic Justice in International Law: An Evaluation of the Discursive Framework

Claims by minority groups to use their own languages in different social contexts are often presented as claims for “linguistic justice”, that is, justice as between speakers of different languages. This article considers how the language of international law can be used to advance such claims, by exploring how international law, as a discourse, approaches questions of language policy. This analysis reveals that international legal texts structure their engagement with “linguistic justice” around two key concepts: equality and culture. Through a close examination of the way in which these concepts function within international legal discourse, the article suggests that this conceptual framework may sometimes constrain, as well as enlarge, the possibilities for justice for minority language speakers. Thus while international law may provide a language for challenging injustices in the linguistic sphere, limitations inherent in this discourse may also restrict its emancipatory potential.     

“Convergence of three nets” and its law transformation in China

The convergence of the three nets of telecommunication, television and Internet is a general trend of development. Though the “convergence of three nets” promotes the competition in the relevant markets, it causes relatively big impacts on the existing legal order. To meet the challenges brought forth by the “convergence of three nets”, many countries and regions have successively adopted effective measures for legal transformation, not only integrating laws and regulations on the telecommunication industry, but also attaching high importance to the transformation of the legal adjustment and control mode where increasingly more emphasis is laid on the influence and functions of competition law in the “convergence of three nets”. China’s antimonopoly law shall also play an important role during the process of the “convergence of three nets”. With respect to the definition of the relevant market and identification of monopoly practices, we shall closely combine the features of the “convergence of three nets” and pointedly apply the antimonopoly law.     

Intention and Attempt

Anglo-American criminal law traditionally demands a criminal purpose for an attempt conviction, even when the crime attempted requires only foresight or recklessness. Some legal philosophers have defended this rule by appeal to an alleged difference in the “moral character” or “intentional structure” of intended versus non-intended harms. I argue that there are reasons to be skeptical of any such differences; and that even if conceded, it is only on the basis of an unworkable view of criminal responsibility that such a distinction would support a rule restricting attempts to criminal purpose. I defend instead the “continuity thesis,” according to which attempts are functionally continuous with endangerment offenses: both are legal efforts to regulate unreasonably dangerous conduct. The upshot of the continuity thesis is that there is little substantive difference between attempt and endangerment in principle, no matter how they are labeled in law.     

Reliance and Obligation

Abstract.  The fact that A has relied on B to do something is often taken to be a relevant factor in judging that B has a moral or legal obligation to do that thing. This paper investigates the relation between reliance and obligation. Specifically, the question is whether reliance and moral obligation are connected by some relation of conditionality. I consider four such relations—necessary condition, sufficient condition, necessary part of a sufficient condition, and independent necessary part of a sufficient condition. I argue that only the third one connects reliance and moral obligation, and that it does so in a trivial way. There are nevertheless two justifications for the prominence given to reliance in morality and law. First, reliance appears to be a sufficient condition of states of affairs involving concepts related to obligation. Second, reliance is a fairly reliable indicator of obligation.     

Morality Influences How People Apply the Ignorance of the Law Defense

In four empirical studies, we showed that laypeople apply the ignorance of the law defense differently depending on the perceived morality of the defendant's course of conduct at the time of the illegal act. Moral and neutral defendants who pled ignorance of the law were afforded leniency, whereas immoral defendants were sentenced as though they were not ignorant, even when defendants in all three conditions violated identical laws. These findings suggest that laypeople adopt a just deserts approach to criminal law, which influences their responsiveness to a criminal defendant's claim to be ignorant of the law. We discuss the implications of these findings for criminal law and argue that legal doctrine should reflect laypeople's moral intuitions.     

Reflections on the legal features of the socialist market economy in China

China’s socialist market economy is a market economy co-existing with a large public sector of the economy, affected by the State as a policymaker, a regulator and an important actor along with private ones; general interests in principle prevail over individual ones. A major role of the law is of providing the tools for administrative leadership and efficient macro-control. Legal and policy documents concur in indicating a model for the developing Chinese legal system: not as Western-style “rule of law” (r.o.l.); more and better socialist laws; effective supervision at all levels; intense macro-control over private economy; more efficient, law-abiding administration and legal institutions. The governing authorities are at different levels, according to the size/impact of each specific business, and each of them has or may have a say beyond the law, so implementing full macro- and micro-control on the market at various levels, through a substantial number of “policy checks” at appropriate junctions or in blank areas of the law. Differentiated “modes” of the law could be the results of a coordinated absorption within the socialist frame of values, mechanisms, norms, formants hailing from different sources.     

Binding Morality and Perceived Harm as Sources of Moral Regulation Law Support Among Political and Religious Conservatives

Conservatives—both political and religious—are more likely than liberals to support laws regulating traditional or religious morality. The current study applies a moral psychological framework to argue that the association between conservatism and moral regulation law support can be explained in part by binding morality, or a moral orientation that privileges group needs above individual needs and includes concerns about absolutism, collectivism, and purity. Binding morality may directly promote support for moral regulation laws, which enforce traditional rules, discourage deviance, and require adherence to customs regarding bodily and spiritual purity. Binding morality may also indirectly promote support for moral regulation laws by motivating perceptions that “immoral” behaviors are harmful to innocent victims. I test these hypotheses using three analytic samples drawn from the General Social Survey (N = 3669, 7120, 369). Results show that, as expected, binding morality (especially purity) mediates the effects of political and religious conservatism on laws regulating pornography, marijuana, abortion, and euthanasia. Additional analyses exploring views about pornography show that binding morality (especially collectivism) is associated with perceptions of immorality as harmful, which in turn is associated with support for regulation.     

Interdisciplinary research on international relations theory and international law in China over the past 10 years

From the origin, there has been a strong connection between international relations and international law. In the development of the history of different academic subjects, the research on international relations and international law are interdependently promoting each other. As a result, the realization of interdisciplinary research on international legal theory and the study of international law is inevitable. As a matter of fact, even though the interdisciplinary research of the two subjects has been separated for almost half a century, the need for the development of the subject and the changing world political and economical status give them a new chance for reunification. Recently, the interdisciplinary research on international relations theory and international law by the Western academic is becoming the order of the day, which has become the latest shining point of the recent development of the two subjects, which is even regarded as the new revolution of international relations theory and the study of international law. In this context, the past ten years is a period of emergence of Chinese international relations and the interdisciplinary research of international law. In the past ten years, some scholars have overcome “the difficulty of interdisciplinary research,” “the prejudice within the subject” and “the gap among different subjects,” and made pioneering research in the field of “systematic connection” and “issues in overlapping field.” Moreover, they gradually make the interdisciplinary research to be a popular method and a common recognition. Based on the current studies, interdisciplinary research will have a broad future in the fields such as “the interchange of concepts,” “the exchange of method,” and “the mutual assistance of materials,” which will provide scholars in this area with a broad space for research.     

Thoughts on the theories and practice of chinese private international law

“The parties can only choose facultative legal norms,” “the parties of all foreign-related civil and commercial cases may agree to choose Chinese law as the applicable law governing their legal relationship,” and “the applicable law to the contract chosen by the parties shall not avoid the mandatory provisions of Chinese law” —such viewpoints that have substantial influence among the theorists and in the judicial practices of Chinese private international law are actually based on misunderstandings of Chinese private international law. It is a task of the private international law community of China to eliminate such misunderstandings, hence facilitating the healthy development of Chinese private international law.     

Law,Genre and the Voice of the Friend

The article attempts to think friendship in its relation to law and justice and provides some arguments for the importance of this concept in Derrida’s ethical, legal and political philosophy. It draws on early texts such as Of grammatology and reads them in conjunction with later texts such as The animal that therefore I am. The relation of friendship to law and justice is explored by means of Derrida’s notion of “degenerescence” understood as the necessity or law of indeterminateness that cuts across, both limiting and de-limiting, all laws, types and generic partitions, for instance, juridical (natural and positive right), humanistic (human and animal), anthropological (sexual difference), philosophical (physis and nomos). Drawing on Derrida’s readings of “sexual difference” in Heidegger and the latter’s evocation of “the voice of the friend” in Being and time, the article addresses the theme of Geschlecht and articulates the exigency to think sexual difference beyond duality together with the exigency to rethink law and right otherwise than on the ground of nativity and “natural fact” and in terms of what Derrida calls “a friendship prior to friendships” at the origin of all law and socius.     

Asian Sexuality or Singapore Exceptionalism?

Is there such a thing as “Asian sexuality”? Do Asians approach sex in particular ways that are uniquely cultural? Some “Eastern” sex manuals published in English cover the “tao” and tantric philosophies of sex, highlighting the pleasures of Asian styles. Yet, any discourse on “Asian sexuality” must be an orientalist one that pits the West versus the East (Asian). In Singapore, there is an official discourse of sexuality that similarly essentializes West versus East (Asian), and this discourse has long served as the rationale or alibi for repressive sexual policies. In particular, these official constructions make “Asians” as sexually conservative. This essay deconstructs the meaning of “Asian sexuality” as used in the Singapore context and shows the contradictions inherent in official policies that adopt Western colonial laws to proscribe certain sexual practices—albeit in the name of “Asian values”.     

Farewell to the Exclusive-Inclusive Debate

In recent years there has an ongoing debate between two versionsof legal positivism. According to one, called exclusive positivism,whenever the law refers to morality, the law necessarily directsits subjects to an external, non-legal, standard, because thereis a conceptual impossibility in incorporating moral standardsinto the law. According to the rival inclusive positivist position,such incorporation is possible, and therefore moral standardscan be (although they need not be) part of the law. In thisarticle I argue that both views are mistaken since they bothassume that whenever words like ‘equality’, ‘justice’etc. appear in the law they refer to moral standards. Rather,I argue, these words refer to legal standards, which are differentfrom the moral standards. As a result the question of the possibilityof incorporation can be avoided, and the debate between exclusiveand inclusive positivists put to rest.     

Crimes against water: non-enforcement of state water pollution laws

In the United States water pollution is a serious problem criminalized not only by the federal government, but by all states. These laws vary greatly in content, but are widely disobeyed and universally under-enforced. Statutes, case law, histories and journalism show “law in action” typologies of non-enforcement efficacious for analysis including: (1) jurisdiction issues like federal pre-emption, inter-state compacts, and constitutional limitations; (2) legislative issues such as failure to legislate, or legislating ineffectively; (3) agency issues, including administrative obstacles, delegation, power vacuums, procedure, and “agency capture”; (4) policing issues like apathy, under-funding/training, jurisdictional confusion, and “following the path of least resistance”; (5) prosecutorial issues, including isolation, intimidation, and ideological priority bias; (6) trial and appellate court issues, including unclear culpability, erroneous holdings, bias, and lack of judicial independence; and (7) citizen, victim, and defendant issues, including legal intellectual influence, environmentalist criminalization apathy, industry lobbying, environmental justice, reporting failures, self-policing, ethics and flight. The conclusion is non-enforcement in this area of criminal law shows that while federally there may exist a relatively consistent, content neutral enforcement system, at the state level resistance to enforcement is seen across a number of fronts. Ultimately, states can be seens as colonized frontiers servicing venture capitalism, consistent with a “race to the bottom.”     

Excuses, excuses

Justifications and excuses are defenses that exculpate. They are therefore much more like each other than like such defenses as diplomatic immunity, which does not exculpate. But they exculpate in different ways, and it has proven difficult to agree on just what that difference consists in. In this paper I take a step back from justification and excuse as concepts in criminal law, and look at the concepts as they arise in everyday life. To keep the task manageable, I focus primarily on excuses and excusing activities, distinguishing them from justifications as well as from other close relatives, in particular, forgiving and pardoning. I draw upon J.L. Austin’s classic “A Plea for Excuses,” but expand on his account, suggesting that we offer excuses for reasons besides those he mentions. My hope is that my examination of excuses and excusing activities will help us rethink our views on just how justifications and excuses differ, views which often are worked out without much attention to how these concepts function in everyday life and to the connection between offers of excuses and justifications and the “rules of civility.”

The Place of Legal Positivism in Contemporary Constitutional States

The aim of the paper is that of discussing some recent antipositivist theses, with specific reference to the arguments that focus on the alleged incapability of legal positivism to understand and explain the complex normative structure of constitutional states. One of the central tenets of legal positivism (in its guise of methodological or conceptual positivism) is the theory of the separation between law and morality. On the assumption that in contemporary legal systems, constitutional law represents a point of intersection between law and basic moral values, antipositivists contrast legal positivism with two main arguments. First, on a more general level, the positivist theory of the separation between law and morality is questioned; then, and consequently, the neutrality thesis in the juristic study of law is rejected. The author discusses both these antipositivist arguments, and offers a brief defence of methodological positivism.     

Ordinary Folk and Cottaging: Law, Morality, and Public Sex

The Sexual Offences Act 2003 introduced a new statutory offence of 'sexual activity in a public lavatory' into English law. Although written as a gender-neutral offence, the statute was formulated and enacted on the basis of concerns about male homosexual sexual activity in public lavatories ('cottaging'). This paper examines the justifications for, and implications of, the legislation. It considers the main arguments made in support of the offence and situates these within established moral, legal, and social debates about homosexuality. The paper considers the relationship between conceptions of public and private morality in relation to the legal regulation of homosexual sex. It goes on to explore the complex nature of regulating public sex in relation to sexual practices which often maintain high degrees of privacy. The final part of the paper argues that the legislation is largely in contradiction with the realities of police work and contemporary law enforcement.     

Validity and Defeasibility in the Legal Domain

In jurisprudential literature, the adjective ‘defeasible’ appears as a predicate of many terms: concepts, laws, rules, reasoning, justification, proof, and so on. In this paper, we analyze the effects of some versions of the thesis of the defeasibility of legal norms on the reconstruction of the notion of legal validity. We analyze some possible justifications of this thesis considered as a claim concerning validity, and enquire into two possible sets of problems related to the defeasibility of the criteria of identification of a legal system. We also provide a formalization of some options regarding defeasible criteria of identification, which can be used as a tool for meta-jurisprudential analysis. Finally, the thesis according to which defeasibility is better conceived of as a feature of legal application is examined and questioned.     

The Continuing Relevance of Ars Poetica to Legal Scholarship and the Modern Lawyer

In this late modern era within which the basic values of life have been reordered (driven by globalisation, the corporate agenda and mass communication technologies), the individual has effectively been reduced to a mere abstraction. It might be argued that the rational, moral and humanistic concept of freedom has, to a great extent, been compromised by a consequent crisis within the intelligentsia. These groups, in particular the gatekeepers of a classical liberal approach to legal scholarship, are caught between the twin evils of increased unreflective populism and pragmatism evident within many law schools and modern legal institutions. Although a contested term, defenders of the ‘socio-legal’ tradition, who place the humanities at the heart of legal research and education, are obliged to restate with increased determination the utility of the liberal arts and literature to the law profession and wider legal community. In a normative environment, law and narrative are inextricably linked and narrative poetry is not only invaluable to explaining the origins and location of the legal tradition, but also elicits a mode of understanding which transcends the boundaries of narrowlydefined legal hermeneutics—which often only addresses issues of an operational nature. French novelist Flaubert claimed “chaque notaire porte en soi les débris d’un poète” (Flaubert in Madame bovary (trans: Wall, G.), Penguin Classics, London, 1960: 269), paraphrased by American civil rights lawyer, Clarence Darrow, as “inside every lawyer is the wreck of a poet” (Lukas in Big trouble: a murder in a small western town sets off a struggle for the soul of America, Simon & Schuster, New York, 1997: 323). In an age of disenchantment, this paper explores the poetic form as an important medium within which to understand the nature and function of law in a society of differentiated individuals.     

Forensic DNA Sampling and the England and Wales National DNA Database: A Sceptical Approach

This paper explores possible implications of the rapid expansion of the England and Wales National DNA Database (NDNAD), and the current DNA sampling of offenders and the retention of samples. A precis of the justifications enunciated for the NDNAD is followed by a sceptic's rebuttal and wider analysis of the impact of the growth of forensic DNA testing. It is contended that the expansion of forensic DNA testing should be considered a response within the risk society to the problem of criminal detection, where “risky populations” will have their DNA held permanently by the State for the prevention and early detection of crime. As with any new technology, new “risks” are created, including not only error, improper access and disclosure and “function creep” but the potential creation of a “suspect society” with forensic DNA technology co-opted into mass surveillance and social control mechanisms. This revised version was published online in July 2006 with corrections to the Cover Date.     

Trading Signs: Semiotic Practices in Law and Medicine

Lawyers write, blog and are otherwise producers of words; they structure public life through legal discourse and integrate all issues that reinforce legal reasoning. Even if one is inclined not to justify the power of their words in the context of a democratic theory, one is hardly able to challenge its public acceptance. But semiotic analyses harden the question whether these emperors wear nothing but robes. That attitude intensifies where medicine becomes increasingly relevant for legal discourse, as becomes clear where for instance US political viewpoints bring bioethical issues to the Courts. One major theme in today’s medicine pertains to identity in its psychological, philosophical and social dimensions. Identity thus becomes a groundbreaking semiotic issue in law and medicine; both discourses are particular important to the otherness of the other. A US criminal law case interests here (Harrington v. State of Iowa, 2003; cited as: 659N.W.2d 509). The case is decided with “information about what the person has stored in his brain”. A chain of signs is involved: from “brain-function” to “brain-storage” via “brain-scan” to “brain-fingerprint”, for which the case became famous. A long series of signs and meanings belong here to intertwined discourses. Central is a particular sign in each discourse: “brain” means brain scan, and “fingerprint” means law! The two display trading mechanisms, which determine the otherness of the other and the self! The chain of signs in the Harrington case shows inter-disciplinarity in law and inter-discursivity among law and medicine. The trading itself underlines the semiotic dimensions in cyberspace, in particular the semiotics of the virtual (Hayles, Kurzweil) and their effects on legal discourse.