狂欢化的《尤利西斯》

狂欢节文化在整个官方世界彼岸建立起第二世界和第二生活,以一种反叛的姿态与官方生活形成对峙.狂欢节节庆活动具有明显的肉体-物质因素,充满了死亡和新生、交替与更新的精神.《尤利西斯》表现出浓郁的狂欢化色彩.在宴饮与性、葬礼与生产以及拉伯雷式的怪诞形象等狂欢节表层生活里,隐藏着乔伊斯对爱尔兰瘫痪现实的讽刺揶揄和对民族历史的深刻反思.     

论生命权法律性、权利性、神圣性的坚守——对生命权伦理化、义务化、生物化话语的批判

生命权作为一项权利,主要性质是法律性而非道德性;其特征的主要是自由处分性而非处分的受限性,人的生命权是神圣的。在生命权的理论阐述和诠释中,盛行着生命权的伦理化、义务化、生物化话语:有人强调牺牲、奉献,在高扬权利道德性的同时放弃了权利的法律性;有人强调生命的义务,在聚焦人活着的责任的同时遗忘了人活着首先是一种权利;有人执着于人的生物属性,在呼吁人与动物平等和睦相处的同时抛弃了人类生命的特殊性和神圣性。这三类话语,将矛头直指生命权的法律性、独立性、排他性和生命权的神圣性,实有批判之必要。     

对话《刑法知识去苏俄化》的作者

断言"苏联的犯罪构成体系是对大陆法系的犯罪构成体系改造而来",是依靠想象的力量所作出的伪判断;在苏联的犯罪构成体系中并不乏评价要素,也没有将事实要素与评价要素混为一谈,只不过同德国殊路而已;德国与苏联的犯罪构成体系各有所长,各有所短,苏联的犯罪构成体系的特点在于便于司法操作,极具实践品格;社会危害性在我国刑法中仍有存在的价值,讨论它不能脱离刑法的规范。     

侦查阶段的“诉讼化”重构——从新《律师法》中的律师辩护权说起

刑事诉讼结构指刑事诉讼中控诉、辩护和裁判三方的法律地位以及相互之间的法律关系。目前我国侦查阶段具有鲜明的行政追诉色彩,缺少辩方的平等参与,更没有中立的裁判者,不符合刑事诉讼的诉讼化构造。新律师法对侦查阶段律师辩护权的规定已经流露出了控辩平等对抗的气息,但规定存在疏漏,侦查阶段的诉讼化仍需继续重构。     

宽严相济视野下的犯罪化与非犯罪化——从最高人民检察院《不起诉标准》谈起

犯罪化与非犯罪化是社会发展过程中的必然现象。我国的犯罪化与非犯罪化都主要出于现实主义的考虑。为适应宽严相济政策与构建和谐社会的要求,合理划定犯罪圈,应当树立犯罪化与非犯罪化并轨运行的理念,一方面要严密法网,另一方面,对微罪行为予以宽容。转型期社会现实决定了我国的犯罪化进程仍将继续。司法上的非犯罪化将是我国目前及今后非犯罪化的主要途径,《不起诉标准》就属于这方面的实践。     

对《妇女权益保障法》基本原则的新思考

《妇女权益保障法》的基本原则是该法的核心和灵魂,是准确认识和理解该法的基石。修改《妇女权益保障法》,应对其基本原则重新进行思考,并确立保障妇女人权、性别平等以及禁止一切形式性别歧视三项基本原则。     

论现代刑法扩张的新手段——法益保护的提前化和刑事处罚的前置化

现代刑法扩张的新手段主要有两个:一是法益保护的提前化;二是刑事处罚的前置化。法益保护的提前化主要表现在将特定风险领域的集体法益作为对个人法益保护的前阶,直接作为刑法的保护对象。刑事处罚的前置化并不是减少了对于犯罪构成的刑事违法性的要求,而是减少了对于实行行为触动刑事处罚所需要满足的前提条件的要求。预备犯、累积犯和抽象危险犯都是刑事处罚的前置化的犯罪类型,这些犯罪类型既是更周延地保护法益的有效手段,又是可能过分扩大处罚范围的有问题的手段,立法者不能随意地、普遍化地设立刑事处罚的前置化的犯罪类型。     

准据法的非国内法化:理想抑或现实——兼评我国《民法典(草案)》第9编第4、50条之相应规定

准据法的非国内法化是自治性商人法学者为使国际商事交易免受国内冲突法和实体法影响而提出的新的法律选择思想。基于国际商事仲裁在国际商事争议解决机制中的独特价值,以商人法为准据法的思想业已为一些国际及国家仲裁立法所吸纳,成为一项现实的选法规则,而鉴于司法在政治及社会体系中所处的特殊位置与功能,商事诉讼领域准据法非国内法化的条件尚未成熟。     

Putting Race and Gender Together: A New Approach To Intersectionality

European anti-discrimination legislation explicitly calls for member states to consider a legal response to multiple discrimination, either additive (arising from many grounds) or intersectional (a result of an interaction of grounds). In traditional Anglo-American anti-discrimination frameworks the structure of separate statutes forces complainants to choose one ground or another. In Britain, cases such as Nwoke v Government Legal Service indicate a judicial willingness to recognise additive discrimination, while cases such as Bahl highlight the difficulties of dealing with intersectionality. This article suggests that to overcome current difficulties with intersectional discrimination, first the qualitative difference of intersectional claims must be clarified; secondly, the logic of immutability underlying grounds must be replaced by one which accommodates intersectionality; and thirdly, a method is required which enables courts systematically to incorporate social context into judicial decision-making. With these three changes, the qualitative difference of intersectionality can be both understood and activated in the courts.     

Gender Differences in Strain,Negative Emotions,and Coping Behaviors: A General Strain Theory Approach

This paper empirically evaluates Broidy and Agnew’s propositions, in which they apply general strain theory to explain gender differences in crime and deviance, by analyzing data from a national survey of adult African Americans. First, African American women were more likely to report strains related to physical health, interpersonal relations, gender roles in the family, and less likely to mention work‐related, racial as well as job strain than African American men. Second, African American women were less likely than African American men to turn to deviant coping strategies when they experienced strain partly because their strains were more likely to generate self‐directed emotions, such as depression and anxiety, which in turn were less likely to lead to deviant coping behaviors than other‐directed, angry emotion. Finally, it was found that the self‐directed emotions were more likely to result in nondeviant, legitimate coping behaviors than other‐directed emotion, anger.     

Judging the Other: The Intersection of Race,Gender, and Class in Family Court

This critical ethnographic study of family court child maltreatment proceedings describes and illuminates the ways in which racial, gender, and class disadvantages can manifest on the ground as judges, attorneys, social service workers, and parents—joined often by gender but split by race and class—adjudicate cases. The findings suggest that intersectionality worked in ways that exponentially marginalized poor mothers of color in the courtroom. They were marginalized both through the rules of the adversarial process (which silenced their voices) and through the construction of narratives (which emphasized individual weakness) over structural obstacles as well as personal irresponsibility over expressions of maternal care and concern. Standard due process courtroom practices also communicated bias or social exclusion, especially in a courtroom split by race and class.     

Abetting a Crime: A New Approach

Law and Philosophy - In “Abetting a Crime,” Husak puzzles over what, exactly, abettors are held liable for. Having (correctly) dismissed the proposal that derivative liability can...     

Integrating Critical Race Theory and Postmodernism Implications of Race, Class, and Gender

This paper begins with an overview of criticalrace theory tenets, which in turn will befollowed by an overview of postmodernism. These bodies of knowledge consist of an arrayof ideologies; but for the purpose of thisarticle only the fundamentals of each will bediscussed. Thereafter, an integration ofthese two contemporary areas of thought willdemonstrate the constructive linkage ofcritical race theory and postmodern theory. Theintegrations that follow will emphasize how acollaboration of critical race theory tenetsand postmodern thought can contribute to asuccessful, and more importantly improved,analysis of the social constructions of race,class, and gender. In addition, theintersectional analysis presented willdemonstrate a more informative and betterunderstanding of the subtleties of blatant andmore hidden forms of race, class, and gender.     

Violence and Mental Illness: A New Analytic Approach

Empirical studies of violence and mental illness have used many different methods. Current state-of-the-art methods gather information from both subject and collateral interviews as well as official records. Typically these sources are treated as additive. Any report of a violent incident from any source is treated as true and all reported incidents are added to generate estimates of frequency. This paper presents a new statistical technique that uses the level of agreement between the sources of data to adjust those estimates. The evidence suggests that, although the additive technique for using multiple sources correctly estimates how many people are involved, it substantially underestimates the number of incidents. The new technique substantially reduces both false negatives and false positives.     

Collisions at the Intersection of Gender, Race, and Class: Enforcing the Chinese Exclusion Laws

This article explores the ramifications of the intersections of gender, race, and class ideologies for the enforcement of the Chinese Exclusion Laws in the years immediately following their passage. Drawing from government documents and archival data, I argue that the notions of gender, race, and class that permeated the legislative debate contained significant incoherences and self-contradictions, and that many of the dilemmas surrounding the enforcement of the exclusion laws against Chinese women resulted from these collisions. Faced with conflicting mandates derived from, for example, racism and patriarchy, enforcement officers had to choose between equally powerful discourses. Their ad hoc and often pragmatic approach to such dilemmas contrasted sharply with a policy process that otherwise appeared to be driven by unquestioned—and unquestionable—moral mandates. In concluding, I note the implications for our understanding of the contingencies and instabilities of ideology and the legal practices of which it is part.     

American Skin: The Duke Lacrosse Rape Scandal and the Intersection of Race,Class, Gender,and Injustice

The Duke lacrosse team rape case showcased how race and the criminal justice system can intersect in troubling ways. This is not news to students of the history of race in America. What makes this case unusual is white men were the ones who were mistreated by the police, prosecutor, media, and others, all of who used the rape allegations to further their cause rather than to seek justice. This book review essay examines three recent books that describe and analyze the Duke scandal.     

Specialized Versus Versatile Intergenerational Transmission of Violence: A New Approach to Studying Intergenerational Transmission from Violent Versus Non-Violent Fathers: Latent Class Analysis

This paper investigates whether fathers who have been convicted of a violent offense transmit criminal and violent behavior more strongly than fathers who were convicted, but never for violence. First, a more traditional approach was taken where offending fathers were divided into two groups based on whether they had a violence conviction. Secondly, Latent Class Analysis (LCA) was performed to identify two classes of fathers, one of which was characterized as violent. Sons of fathers in this class had a higher risk of violent convictions compared with sons whose fathers were in the other class.