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1.
Christine Black 《International Journal for the Semiotics of Law》2009,22(2):197-208
This article is an innovative piece and at the same time—a timely piece, in a world of global warming. A time in which fierce
scientific debates are being fought over anthropogenic impact. Yet the general public would appear to ‘feel’ the change, without
any need for measurement and contesting of findings. This ‘feeling’ is manifest in the Earth Hour. It is this collective act
which I would argue is borne out of feelings for the earth. Feelings which tell people instinctively a change in behaviour
is needed. This article therefore examines the semiotics of a jurisprudence which is premised on feelings. Feelings towards
the Djang—a primordial force expounded by the Australian Aboriginal Senior Law Man Bill Neidjie of the world heritage listed—Kakadu
National Park, Australia. He foresaw the climatic shifts and wanted to assist European Australians—Balanda to help avert the possible consequence. 相似文献
2.
Andreja Zevnik 《Law and Critique》2011,22(2):155-169
The Guantanamo detention facility, from its early days an emblem for human rights abuses, is a space where legal subjectivity
of detainees is contested or even permanently suspended. This essay argues that we should look for the underlying rationale
for this treatment not in the politicians who pursue intelligence, security, and strategic interest, or indeed even revenge
for 9/11, but rather in the logic—or the ontology—that drives the present political and legal system. This is not to say,
of course, that politicians play no role, or that they are mere ‘victims’ of social and political power relations—far from
it; yet, it has to be acknowledged that the foundational assumptions on which the existing system operates create conditions
of possibility for such degrading actions and exclusionary politics. This paper will first explore these philosophical foundations
that enable such an understanding of exclusionary legal subjectivity as we see practiced in Guantanamo, amongst other places;
secondly, it will search for an alternative logic of legal subjectivity as a ‘foundation’ for rights. Gilles Deleuze’s notion
of ‘becoming’ as a potentially facilitative practice for an ‘open’ notion of legal subjectivity, as well as Alain Badiou’s
account of ethics and evil, which points to a more ‘inclusive’ yet ‘situational’ understanding of human rights, will prove
particularly useful here. 相似文献
3.
Mal dato, ma ben ricevuto is a rather untranslatable Italianexpression which refers to acts that are based on wrong assumptionsbut whose final results (might) make everybody better off. MsSueffert's article is a good example. In her article, Ms Sueffertsuggests that the USPTO might reduce patent examiners' workloads—andthe resulting tendency towards granting patents that shouldnot be granted in the first place—by using softscientists (psychologists, economists, political scientists, 相似文献
4.
David Brick 《Journal of Indian Philosophy》2010,38(1):25-38
According to their standardized treatment within the Indian legal tradition (Dharmaśāstra), ordeals (Sanskrit: divya) are supposed to occur, under certain circumstances, when one person formally accused another of some crime in a court of
law. While not disputing the general accuracy of this standardized treatment of ordeals, this article argues for the widespread
practice in pre-modern India of another—hitherto unrecognized—type of ordeal that fails to fit this basic scenario, for such
ordeals would occur when someone was widely believed to have committed some wrongdoing, but was not forced to stand trial
in a formal judicial court. In order to prove his innocence and, thereby, mitigate the damage caused by his suspected guilt,
such an individual could—and sometimes did—arrange for himself to undergo an ordeal at his own expense and independently of
any formal plaint. After establishing the practice of ordeals of this sort in pre-modern India, this article then examines
some possible explanations for their development. 相似文献
5.
The business of bribery: Globalization, economic liberalization, and the “problem” of corruption 总被引:1,自引:0,他引:1
This paper is intended as a critical response to the emerging consensus within both academic and policy literatures that we
are currently facing an epidemic of corruption which threatens to undermine the stability of economic and political development
on both a national and global scale, and which requires both immediate and wide-ranging policy interventions. Based on a review
of the publications and policy statements of the leading anti-corruption crusaders — namely the OECD, the IMF, and the World
Bank — it will be argued that the recent concern with corruption is attributable, not to any substantive increase incorrupt
practices, but rather, to the re-framing of corruption in light of broader shifts and transformations within the global economy.
This revised version was published online in July 2006 with corrections to the Cover Date. 相似文献
6.
Marian Hobson 《International Journal for the Semiotics of Law》2010,23(3):265-281
The article begins by examining two arguments used by Derrida in work published in 1967. The first claims against Lévi-Strauss
that an empirical pattern of events cannot be injected into or superimposed onto an historical pattern claiming universality,
for then there can be no disconfirmation of what is said. (This argument is used against Marxian history by some who write
in the wake of Existentialism, Paul Roubiczek for instance.) The second claims against Foucault that he does not distinguish
between reason as part of thinking and language and reason as an empirical historical structure capable of modification along
time. The article then discusses the use of very similar if not identical arguments in Derrida’s much more recent work on
laws, Force of law. The intelligibility, the interpretability, of laws and their history comes after the laws, not before, and is thus not fully
universalisable. 相似文献
7.
Alan D. Hemmings Lorne K. Kriwoken 《International Environmental Agreements: Politics, Law and Economics》2010,10(3):187-208
The 1991 Protocol on Environmental Protection to the Antarctic Treaty (Madrid Protocol), the latest instrument of the Antarctic
Treaty system (ATS), establishes environmental standards to manage 10% of the planet. Under the Madrid Protocol, all activities
subject to advance notice reporting obligations under the 1959 Antarctic Treaty are required to undergo prior Environmental
Impact Assessment (EIA). The highest level EIA—termed a Comprehensive Environmental Evaluation (CEE)—requires international
scrutiny. This is the only form of EIA where such scrutiny occurs and the only context under the Madrid Protocol or any other
part of the ATS where the proposed actions of State Parties, or operators subject to their jurisdiction, are subject to formal
international review. Whilst this review does not provide a veto, it has been viewed as an important development in the Antarctic
multilateral regime. To date, there have been 19 CEEs. This article reviews the Antarctic CEE process and evaluates its application
in practice against the environmental obligations established in the Protocol. Whilst most CEEs are substantial documents
and processes, which have raised the standard of environmental care in the area, there are significant generic limitations.
Not one CEE appears to have led to substantial modification of the activity as first elaborated by the proponent, let alone
a decision not to proceed with the activity, despite this being a mandatory consideration. There are indications that the
imperatives in the CEE process are often administrative and diplomatic rather than environmental and that notwithstanding
the international scrutiny of draft CEEs, state action may not be significantly changed. Suggestions are made on improvements
to the CEE process. The Madrid Protocol is a framework convention, designed so that its technical annexes, including that
addressing EIA, may be periodically updated. Twelve years after its entry into force, and almost 20 years after its adoption,
such updating may now be useful. 相似文献
8.
This article argues that the peculiarly common law traditionseparation of common law and equity had at its origins a principledbasis in the concept of conscience. But consciencehere did not mean primarily either the modern lay idea, or theconscience of Christopher St German's exposition.Rather, it referred to the judge's, and the defendant's, privateknowledge of facts which could not be proved at common law becauseof medieval common law conceptions of documentary evidence andof trial by jury. The concept of a jurisdiction peculiarly concernedwith this issue allowed the English bill procedureto be held back to a limited subject area rather than—asin Scotland and the Netherlands—overwhelming the old legalsystem. By the later 17th century, however, the concept of consciencehad lost its specific content, leaving behind the problem, stillwith us, of justifying the separation of equity. 相似文献
9.
Iain Brassington 《Law and Philosophy》2008,27(5):415-444
Motivated by Lord Joffe’s Assisted Dying for the Terminally Ill Bill, but with one eye on any possible future legislation,
I consider the justifications that might be offered for limiting assistance in dying to those who are suffering unbearably
from terminal illness. I argue that the terminal illness criterion and the unbearable suffering criterion are not morally
defensible separately: that a person need be neither terminally ill (or ill at all), nor suffering unbearably (or suffering
at all) to have a right to assisted dying. Indeed: I shall suggest that the unbearable suffering criterion undermines the
Bill (or any proposal like it) wholesale. On the other hand, the criteria taken together are defensible, and this defence
would be built on a concern for the protection of the vulnerable. However, I also claim that this implies that the law might
justifiably—and maybe even properly—aim to prevent a person from gaining access to that to which they have a serious moral
right. This seems paradoxical, and, towards the end of the paper, I seek to tease apart the paradox. 相似文献
10.
Emilios Christodoulidis 《Law and Critique》2009,20(1):3-26
The paper is an exploration in critical legal theory, and argues for a return to thinking of critical legal intervention in
political-strategic terms. If the insistence is on strategies of rupture it is because the attention is on what registers
as resistant, neither reducible to—nor co-optable by—the order it seeks to resist. It is argued that if law is to offer redress
to injustice it has to offer terms that can break incongruently, irreducibly so, with the order of capital, and its economy
of representation, not couching critique within its terms, taking flight into the mysticism and escapism of the ‘ethical turn’,
or entrusting critique unconditionally to the deconstructive energies of the law. The paper explores how difficult the task
facing critical legal theory is in view of law’s power of ‘homology’ and its ‘mechanisms of deadlock’. Both within the courtroom
(the focus here is on the tactics of rupture of the lawyer Vergès) and outside it, a return to a strategic understanding of
law underlies its deployment as means of critique (‘simple’ or ‘immanent’) or object of confrontation rather than horizon
of communicative exchange. 相似文献
11.
Miriam Gur-Arye 《Criminal Law and Philosophy》2012,6(2):187-205
The paper argues for attaching a significant role to the dignity of offenders as a limitation on the scope of substantive criminal law. Three different aspects of human dignity are discussed. Human dignity is closely connected with the principle of culpability.
Respecting the dignity of offenders requires that we assign criminal liability according to the actual attitudes of the offenders
towards the interests protected by the offence. The doctrine of natural and probable consequence of complicity, which allows
us to assign liability for mens rea offenses to a negligent offender, violates the dignity of the offender; it treats the incautious offender as if she had willfully expressed disrespect towards the protected interest. The human dignity core of privacy is invaded by criminalizing
the private possession of child pornography. By extending the prohibition of the creation, sale and distribution of child
pornography to the private possession of pornography, the State attempts to control the way the individual expresses an essential
part of the self—his sexual fantasies—within himself. Dignity demands that our actions convey an attitude of respect towards
human beings. The expressive meaning of disrespect is culture-dependent. The historical association with totalitarian regimes
explains our reluctance to impose a legal duty to report past crime: the individual who is legally required to turn a suspect
into the police is viewed as an “informant.” 相似文献
12.
Given that the Rome Statute does not provide jurisdiction totry corporations for breaches of international criminal law,it has been suggested that national jurisdictions might be usedto fill this impunity gap. The author presents several arguments.First, the international criminal law system, including theRome Statute — and particularly the principles of universaljurisdiction and complementarity — provides the theoreticalgrounding for states to assert jurisdiction over internationalcrimes wider than the International Criminal Court (ICC). Second,Canada, owing to interactions between its domestic legislationimplementing the ICC Statute and existing national criminallaw, is now able to prosecute corporations for breaches of internationalcriminal law. Finally, this increased jurisdiction of Canadiancourts is consistent with the current status of corporationsunder international criminal law. What is really interestingabout Canada's approach, however, is not so much that it hascreated a new legal principle, but rather that it is one ofthe first countries to establish jurisdiction over internationalcrimes committed by corporate entities which were previouslycommitted with impunity.
By stating that I could not guaranteethat the army is not using forced labour, I certainly implythat they might, (and they might) but I am saying that we donot have to monitor the army's behaviour: we have our responsibilities;they have their responsibilities; and we refuse to be pushedin to assuming more than what we can really guarantee. Aboutforced labour used by troops assigned to provide security onour pipeline project, let us admit between Unocal and Totalthat we might be in a grey zone.1相似文献
13.
Using our own experiences in attempting to ‘do’ public criminology in the wake of a violent sexual assault on our campus,
we offer a critique of the emerging public criminology framework. Focusing specifically on tensions between fact and emotion
and representations of expertise in the news media, we argue for a greater respect for emotional responses to crime in moving
the public criminology agenda forward. We suggest that if public criminology sets as its goal educating the public about crime
with an eye towards injecting a counter/critical discourse into ‘get tough’ crime control policies, then public criminologists
need to recognize and take seriously the public’s emotions rather than negate them. Drawing on the work of Ahmed (The cultural
politics of emotion. Routledge, London, 2004), we suggest that the role of the expert is not to simply inform citizens of the ‘facts’ about crime, but to establish—through
emotions—the relationship between themselves and the imagined criminal Other (Young in Imagining crime: Textual outlaws and criminal conversations.
Sage Publications, London, 1996). Thus, alongside trying to convince the public to be more ‘rational’ when it comes to crime, critical criminologists must
start to accept people’s fear and anger as legitimate reactions and try to redirect these emotions toward more productive
ends. 相似文献
14.
Herbert Hovenkamp 《European Journal of Law and Economics》2011,31(1):63-90
Coase’s work emphasized the economic importance of very small markets and made a new, more marginalist form of economic “institutionalism”
acceptable within mainstream economics. A Coasean market is an association of persons with competing claims on a legal entitlement
that can be traded. The boundaries of both Coasean markets and Coasean firms are determined by measuring not only the costs
of bargaining but also the absolute costs of moving resources from one place to another. The boundaries of a Coasean market,
just as those of the Coasean business firm, are defined by the line where the marginal cost of reaching a value-maximizing
bargain by trading inside just equals the marginal cost of going outside. This focus on very small markets is a defining characteristic
of modern Transaction Cost Economics. In analyzing such markets Coase ignored the eclectic, historical and behaviorist approach
of the old institutionalists and applied the greater formalism and of marginal analysis. In the process, however, Coase assumed
away important issues that the first generation of institutionalists were trying to address and created some new ones, such
as how equilibrium is attained in Coasean as opposed to neoclassical markets. The most important difference between the two
is that a Coasean market requires the unanimous consent of all participants before a trade can be made—a condition imposed
by Coase’s own requirement of reciprocity, developed in The Problem of Social Cost (J Law Econ 3:1, 1960). The equilibrium problem is substantial but its significance has not been sufficiently developed. As a result, Coasean analysis
of the business firm has made much more progress than has Cosean analysis of markets for legal entitlements. Further, the
superiority of private governance over legislation, an important attribute of Coase’s argument, loses much of its force as
the number of participants in Coasean markets increases beyond two. Research on the management of commons resources has contributed
greatly to our understanding of when private resource allocation decisions by larger groups of owners succeed and when they
fail. While not all common resources markets are of the kind contemplated by Coase they share many relevant characteristics.
Further, the economic literature on private governance arrangements for the commons has found it necessary to step beyond
the strict marginalist methodologies of Coasean economics and look more broadly to the historical, biological and social motivations
for human cooperation. 相似文献
15.
Lisa M. Jakubowski 《Critical Criminology》1992,4(1):71-88
Despite various government initiatives that have emerged in response to Canada's increasing racial diversification, the unjust
treatment of racial minorities remains a problem. By examining the contracdictions between ideology and practice within an
educational context, this paper provides an explanation of why government efforts direced towards the eradication of racial
injustice have been relatively ineffective. The continued mistreatment of racial minorities is, in part, attributable to the
promotion of a particular form of justice that ‘naturalizes’ racism.
First, a reformulation of the relationship among the concepts of justice, ideology, and complementarity generates an analytical
framework within which to address the problem of ‘naturalization’. The latter part of the paper examines the ‘naturalization’
of inequality generally, and racial inequality specifically, within education. A critical review of the teaching of Canadian
history and Philippe Rushton's controversial theory demonstrates how education currently—but not inevitably—reinforces negative
racial stereotypes, inviting the unjust treatment of racial minorities to remain unquestioned. 相似文献
16.
Nicole A Vincent 《Criminal Law and Philosophy》2010,4(1):77-98
Various authors debate the question of whether neuroscience is relevant to criminal responsibility. However, a plethora of
different techniques and technologies, each with their own abilities and drawbacks, lurks beneath the label “neuroscience”;
and in criminal law responsibility is not a single, unitary and generic concept, but it is rather a syndrome of at least six
different concepts. Consequently, there are at least six different responsibility questions that the criminal law asks—at
least one for each responsibility concept—and, I will suggest, a multitude of ways in which the techniques and technologies
that comprise neuroscience might help us to address those diverse questions. In a way, on my account neuroscience is relevant
to criminal responsibility in many ways, but I hesitate to state my position like this because doing so obscures two points
which I would rather highlight: one, neither neuroscience nor criminal responsibility are as unified as that; and two, the
criminal law asks many different responsibility questions and not just one generic question. 相似文献
17.
Matthew Stone 《Liverpool Law Review》2011,32(1):49-63
This article will briefly trace the travellers’ legal position in Britain from their sixteenth century emergence as a tangible
(although imprecise) identity until now. It will be argued that although the position of the law has changed considerably
in its waning severity, travellers’ legal status continues to be conditioned by enduring and shifting concerns around norms
of labour and residence. Moreover, it is overly-simplistic to interpret their changing predicament as simply a more humane
and multicultural relaxation of previously Draconian measures. Using Michel Foucault’s writings on discipline and ‘biopolitics’,
it will be proposed that those extreme legal sanctions—which during certain periods included the death penalty—have been replaced
by a much more nuanced matrix of regulation and control that seeks to assimilate traveller lifestyles into a mainstream understanding
of human life and society. 相似文献
18.
Alan Doig 《Crime, Law and Social Change》1998,29(2-3):99-112
The 1997 White Paper from the British Government's Department for International Development (DFID) was specific in identifying
the role of governance now being addressed by international and national donors: “improving governance can ... improve the
lives of poor people directly. It is also essential for creating the environment for faster economic growth. Both aspects
can be compromised by corruption, which all governments must address. In developing countries it is the poor who bear proportionally
the heaviest cost“ (DFID, 1997, p. 30). Dealing with corruption is thus a priority both in terms of who it most affects and
in terms of which objectives of governance — including participatory and responsive government and economic growth — it constrains.
Although it has long held a specialist academic interest, corruption has become the subject of growing practitioner attention
which means that the focus on corruption is beginning to move significantly from theory to practice and the practical. While
there is substance to the belief that fire-engines cannot be designed without a thorough understanding of the fire they are
intended to put out, there is also a sense in which the pervasiveness and tenacity of the current fires of corruption are
such that action rather than refining theories and processes is what is now required. To paraphrase an analogy made by a senior
British civil servant about the general issue of identifying policy — that corruption “is rather like the elephant — you recognise
it when you see it but cannot easily define it” (quoted in Hill, 1997, p. 6) — is also to suggest that, while theorising may
help draw up longer-term approaches to dealing with corruption, there is enough information and experience to develop best
practice proposals for more immediate implementation and for developmental strategies that link to the longer-term approaches.
This article addresses some of the issues of this agenda which seeks to develop, for those actively involved in anti-corruption
initiatives, frameworks within which to consider realisable and cost-effective shorter-term anti-corruption strategies.
This revised version was published online in July 2006 with corrections to the Cover Date. 相似文献
19.
Daniel Smilov 《Crime, Law and Social Change》2010,53(1):67-77
This article explores the reasons for the introduction of anticorruption agencies of a specific type in Eastern Europe. It
is argued that one of the important functions of these agencies—which are stronger on information gathering, coordination
and strategy rather than on investigation of concrete cases—is to give to the government some leverage over the anticorruption
discourse. Presenting the anticorruption commissions and agencies as (discourse-controlling) instruments gives an answer to
the troubling question why governing parties are at all interested in the introduction of such bodies. Apart from instrumentalization in political discourse, anticorruption
bodies in Eastern Europe have had other effects as well. As shown in the Baltic case, institutional engineering provides for
a brief window of opportunity during which political forces committed to integrity could gain the upper hand. The problem
in Eastern Europe, however, is not the lack of such windows of opportunities—it is more the lack of really committed political
forces capable of continuous and consistent anticorruption effort. 相似文献
20.
The article sets out a framework within which the problem of corruption may be analysed in any specific country. It does not
seek to establish the importance of such activity in a general sense, or seek to propose particular economic policy or institutional
programmes that should be pursued in order to reduce the impact on the development process. Rather, the objective is to provide
a structure for two distinct areas of analysis. Firstly, it considers the investigation of the determinants of corruption,
emphasising the environment in which corruption evolves — whether shaped by international, national or specific institutional
factors — and the manner in which the different parties to corruption interact and organise themselves in conducting these
activities. Secondly, the article focusses on the importance of corruption for economic development by considering the different
forms of corruption and the characteristics of these forms that are most critical for economic activity. Here, the distortions
that are introduced into on-going economic activity are identified, together with the manner in which these distortions redirect
activity in sub-optimal directions. In addition, the nature of the uncertainty attaching to these differing forms of corruption
is considered, and especially the degree to which a form may be considered anarchic or structured in character: the former
reflecting a system of intense uncertainty, and the latter one of less uncertainty — perhaps, only minimal uncertainty — as
a predictable and stable set of relationships between parties is established. Finally, the article reviews the empirical work
that has been undertaken in this field. This article, therefore, seeks to identify how detailed case study analysis, focussed
on individual countries — and, indeed, on specific institutions or sectors within those countries — could valuably complement
these existing studies, and provide a framework for those seeking to design policy that is appropriate to any individual circumstance.
This revised version was published online in July 2006 with corrections to the Cover Date. 相似文献