“Critical Empiricism” in American Legal Studies: Paradox,Program, or Pandora's Box?

This essay was originally presented at the Conference on American and German Traditions of Sociological Jurisprudence and Critical Legal Thought organized by the Center for European Legal Policy, Bremen, Federal Republic of Germany, July 10-12, 1986. Subsequent versions were discussed at the Department of Sociology, Northwestern University (February 1987) and the Workshop on Legal Theory at the University of Virginia Law School (March 1987). Comments by participants at these events, members of the Amherst Seminar, Boaventura Santos, Kristin Bumiller, and G. Edward White are gratefully acknowledged. An earlier version of the paper appears in Joerges & Trubek, eds., Critical Legal Thought in Germany and America: A German-American Debate (Baden-Baden: NOMOS, 1989).     

法律判断形成的模式

Legal decisions are results of the use of law, which includes the application of law and the finding of law, but mainly referring to the latter. In the application of law, facts match norms, and thus legal decisions could be obtained directly through deduction thereof, which is called the deduction mode. However, in the finding of law, since facts are not symmetric to norms, before making judgment through deduction, facts and norms shall be equalized. That is to say, facts shall be generalized and then upgraded to the provisions, while norms shall be concrete and downwards to specific cases, conducting for spiral upwards, which is called equalization mode. Zheng Yongliu, professor at the Institute of Legal Philosophy of China University of Political Science and Law, also a visiting professor at University of Saarland in Germany (till 1996), and a guest professor at Jilin University (since 1998), whose research is focusing on legal philosophy, particularly on the legal methods as well as law and society. Prof. Zheng once published 4 books, i.e., The Orientation of Rural Law in Contemporary China (1991), The Farmers’ Legal Awareness and the Development of Village’s Law (1993), Das Wirtschaftsrecht Chinas (1997) and The Rule of Law: the British and German Origin, International Standards and Its Practices in China (2002). In his published articles, the follows are most dear to his heart: What is Legal Philosophy (1998), the Origin and Evolution of the “Rechtsstaat” in Germany (2000), the Legal Hermeneutics and Its Relationship with the Legal Interpretation (2002), Academic Freedom and Its Enemies (2004), Pluralistische Ordnungen im chinesischen Wirtschaftswandel (German, 2006).     

REVIEWS

Critical Legal Studies: The Politics of Law. Edited by David Kairys. [New York: Pantheon Books. 1982. x and 321 pp. Paperback $9·95.] Critical Legal Studies: Law, State and Society. Edited by Bob Fryer, Alan Hunt, Doreen McBarnet and Bert Moorhouse. [London: Croom Helm. 1981. 234 pp. (including name index). Hardback £14·95.] Critical Legal Studies: A Bibliography Critical Legal Studies: The Law Lords. By Alan Paterson. [London: Macmillan. 1982. 287pp. £12.] Critical Legal Studies: The Common Lawyers of Pre-Reformation England: Thomas Kebell, A Case Study. By E. W. Ives. [Cambridge: Cambridge University Press. (Cambridge Studies in English Legal History). 1983. 536 pp. £40.] Critical Legal Studies: People Against the Press. An Enquiry into the Press Council. By Geoffrey Robertson. [London: Quartet. 1983. 182 pp. (including appendices and index). £7£95.]     

法律实证主义散论

法律实证主义是20世纪西方三大主要法学流派之一。同时，它还是一个难以精确界定的学术派剐，“法律命令说”不过是法律实证主义的伪标志。法律实证主义的意旨是：通过概念分析，从而使得法学成为一门自足的科学。法律实证主义思想在清末民初时传入我国，但并没有真正地扎下根来。法律实证主义对于当下中国的法学发展、法治建设以及司法实践有着重要的启示意义。     

Rethinking legal methods after Brexit

ABSTRACT

This article provides a critical, personal appraisal of attempts at designing an introductory Legal Methods module, from the perspective of Brexit. Focusing on the author’s own “cases and materials” collection, it interrogates how, rather than challenging a number of paradigms which subsequently dominated Brexit discourses, it unwittingly reproduced them. The second part of the article seeks to respond by suggesting various ways in which a Legal Methods module might introduce students to legal analysis through the example of Brexit itself.     

Getting Real or Staying Positive: Legal Realism(s), Legal Positivism and the Prospects of Naturalism in Jurisprudence

The relationship between Legal Realism and Legal Positivism has been a recurrent source of debate. The question has been further complicated by the related difficulty of assessing the internal relationship between the two main original strands of Legal Realism: American and Scandinavian. This paper suggests considering American and Scandinavian Realism as instantiations of forward‐looking and backward‐looking rule skepticism respectively. This distinction brings into sharp relief not only the fundamentally different relationship between each of these two Realist schools and Legal Positivism but also their equally different potentials as starting points for naturalizing jurisprudence.     

Report on complementary/alternative health care and HIV/AIDS

In 2001, the Canadian HIV/AIDS Legal Network published a lengthy report on Complementary/Alternative Health Care and HIV/AIDS: Legal, Ethical & Policy Issues in Regulation. The document is the first in a series of papers to be produced by the Legal Network on priority legal and ethical issues related to HIV/AIDS care, treatment, and support. The article below summarizes the contents of the report.     

社会主义股份法律制度之系统观

本文贯彻“三个代表”的要求 ,以系统科学框架对马克思主义经典作家关于股份法律制度的论述、股份法律制度的基本结构和功能、在中国实施股份法律制度的必要性等问题 ,进行初步探索 ,确认股份法律制度代表先进社会生产力发展要求的重要价值。     

Reviews

Weatherill, Stephen Law and Integration in the European Union
Jasanoff, Sheila Science at the Bar: Law, Science and Technology in America
Gunn, David L. (ed.) The Lawyer and Popular Culture — Proceedings of a Conference
Denvir, John (ed.) Legal Reelism
Bergman, Paul and Asimow, Michael Reel Justice
Wilson, Geoffrey (ed.) Frontiers of Legal Scholarship
Twinning, William Blackstone's Tower: The English Law School     

Reviews

Legal Marriage—who Needs it?: The Marriage Contract. By Lenore J. Weitzman. [New York: The Free Press. 1981. 536 pp. (incl. index) $17.95.] Legal Marriage—who Needs it?: Cohabitation Without Marriage. By Michael D. A. Freeman and Christina M. Lyon. [Aldershot, Hants.: Gower, 1983. 228 pp. (incl. index). £15.00.] Legal Marriage—who Needs it?: Unmarried Couples. By Winifred H. Holland. [Toronto: The Carswell Company. 1982. 249 pp. (incl. index) Can.$32.50.] Legal Marriage—who Needs it?: The Family Home. By W. T. Murphy and Hilary Clark. [London: Sweet and Maxwell. 1983. xxi and 229 pp. (incl. index) £6£95 (paperback).] Legal Marriage—who Needs it?: Fundamentals of Securities Regulation. By Louis Loss. [Boston and Toronto: Little Brown and Company. 1983. xxiii and 1353 pp. No price stated.] Legal Marriage—who Needs it?: Economic Realities and the Female Offender. By Jane Roberts Chapman. [Lexington, Massachusetts: Lexington Books. 1980. 234 pp. (incl. bibliog. and index). No price stated.] Legal Marriage—who Needs it?: Girl Delinquents. By Anne Campbell. [Oxford: Basil Blackwell. 1981. 266 pp. Paperback: £4-50.1 Legal Marriage—who Needs it?: The Analysis of Judicial Reform. Edited by Philip L. Dubois. [Lexington: D. C. Heath. 1982. xiv and 221 pp. £18·50.] Legal Marriage—who Needs it?: The Politics of Judicial Reform. Edited by Philip L. Dubois. [Lexington: D. C. Heath. 1982. xi and 187 pp. £18·50.] Legal Marriage—who Needs it?: Prosecution in the Public Interest. By Susan R. Moody and Jacqueline Tombs. [Edinburgh: Scottish Academic Press. 1982. xiii and 167 pp. £12·00.] Legal Marriage—who Needs it?: Free Speech: A Philosophical Inquiry. By Frederick Schauer. [Cambridge: Cambridge University Press. 1982. 237 pp. £ 20·00 (hardback) £6-50 (paperback).] Legal Marriage—who Needs it?: English Law and French Law. By René David. [Stevens/Eastern Law House. 1980. 195 pp. Hardback: £12·50.] Legal Marriage—who Needs it?: La Responsabilité Civile. By André Tunc. [Economica. 1981. 161 pp. Paperback: 65F.]     

What Is Legal Philosophy?

Abstract.  This paper argues that legal philosophy is a social practice undertaken by participants whose views have primacy over non-participants. This social practice is dynamic, constructive and based on understanding and explanation, in order to meet normative expectations. Legal Philosophy should include Legal Ontology, Legal Epistemology and a Theory of Justice. It is usually claimed that legal philosophy is a branch of a genus called philosophy, but there is no one single definition of it. In this paper it is argued that as a starting point there is a need to choose between three basic traditions in philosophy.     

法治系统工程:实现依法治国方略的科学途径(续)

本文以系统工程在我国的发展为开端，结合法律知识解释了系统工程的基本原理；阐述了法治系统工程的基本概念与原理、法治系统工程与系统工程之本质区别，进而介绍了法治系统工程所采用的综合集成方法。此外，本文还论述了现代信息技术与法治系统工程的关系、系统工程对现代法律科学的优化功能。文章的结论是：法治系统工程是运用现代科学方法实现“依法治国”的方略、促进社会主义法治现代化的必由之路。     

Neil MacCormick's Second Thoughts on Legal Reasoning and Legal Theory. A Defence of the Original View

This paper offers a diachronic reconstruction of MacCormick's theory of law and legal argumentation: In particular, two related points will be highlighted in which the difference between the perspective upheld in Legal Reasoning and Legal Theory and the later writings is particularly marked. The first point concerns MacCormick's gradual break with legal positivism, and more specifically the thesis that the implicit pretension to justice of law proves legal positivism false in all its different versions. The second point concerns MacCormick's acceptance of the one‐right‐answer thesis and the consequent thinning of the differences between MacCormick's theory of legal reasoning and that of Ronald Dworkin and of Robert Alexy. The intent, however, is not only to describe this change in MacCormick's thought, but also to attempt a defence of the original view that we find in Legal Reasoning and Legal Theory.     

Reviews

Anderson, Bruce ‘Discovery’ in Legal Decision-Making Unger, Roberto Mangabeira What Should Legal Analysis Become? Susskind, Richard The Future of Law: Facing the Challenges of Information Technology Cranston, Ross (ed.) Legal Ethics and Professional Responsibility Sohrab, Julia, A. Sexing the Benefit: Women, Social Security and Financial Independence in EC Sex Equality Law Morse, Geoffrey; Williams, David and Slater, David Davies: Principles of Tax Law Herget Contemporary German Legal Philosophy     

法治系统工程二十年(下)

本文基本展现了20年来法治系统工程在中国发生和发展的概貌。它向读者传递了这样的信息：作为一种现代思维方式，法治系统工程正日渐影响着中国的法学研究；而作为一种现代化的组织管理技术，法治系统工程正日益广泛地融入中国的法治实践。     

法律推理中的法律理由和正当理由

法律推理具有逻辑方法和审判制度的双重属性,它的发展经历了一个从前者向后者的演进过程。法律推理是一个综合运用法律理由和正当理由的法庭决策过程。法律解释作为该过程的一个环节,是以正当理由阐释法律理由而获得法律推理大前提的手段。     

Legal aid reform: its impact on family law

This paper seeks to give an overview of the Legal Aid reform leading to the enactment of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”). It provides a context for the reforms heralded by consultation in 2010, and discusses the interplay with the simultaneous Family Justice Review. The paper goes on to look at the structural and constitutional changes brought about by the LASPO Act 2012, the impact on the Courts, and the removal of many cases from the 'scope' of public funding leading to the increase in the numbers of Litigants in Person. The paper discusses the ‘exceptional’ cases, the cases in which children are joined as parties, and mediation. The article looks briefly at the impact on the legal profession brought about by the legal aid reforms together with the reduction in fees under the Family Advocacy Scheme (also introduced in 2011).     

Lawyers,CABx and the Community Legal Service: A new dawn for social welfare law provision?

This article explores the prognosis for social welfare law provision in the light of the government's plans for the Community Legal Service. It considers whether the involvement of both the advice sector and the traditional legal profession can provide the basis for stable and comprehensive provision of social welfare law. I conducted in-depth interviews with CAB workers and local solicitors in the large conurbation served by two CABx who participated in the non-solicitor franchise pilot in 1997. The research focused on the relationships between the legal service providers and the impact of the franchise operation on the CAB. Although harmonious relationships were found to be largely intact at a local level, the franchise raised considerable tension within the CABx that must serve as a cautionary note to any optimism about 'establishing the Community Legal Service'.     

法治系统工程20年(上)

本文展现了２０年来法治系统工程在中国发生和发展的概貌,它向读者传递了这样的信息：作为一种现代思维方式,法治系统工程正日渐影响着中国的法学研究;而作为一种现代化的组织管理技术,法治系统工程正日益广泛地融入中国的法治实践。     

Putting third first: critical legal issues and HIV/AIDS

On 7 July 2000, before the XIII International AIDS Conference, the Canadian HIV/AIDS Legal Network and the AIDS Law Project, South Africa held a one-day satellite meeting on legal, ethical, and human rights issues in Durban, South Africa. Entitled Putting Third First--Critical Legal Issues and HIV/AIDS, the satellite focused on legal strategies to advance the human rights of those most vulnerable to HIV/AIDS and to discrimination: people in the developing world, and people who, although they live in the industrialized world, suffer from poverty and marginalization and are at high risk of contracting HIV. The satellite grew out of the ongoing partnership between the Canadian HIV/AIDS Legal Network and the AIDS Law Project, South Africa, and was co-hosted by UNAIDS.