法理:法实践的正当性理由

法理是由人的理性认识所凝练、证成法实践的正当性理由。法理是一个实践性概念,它生成于、作用于、发展于法实践,面向法实践绽放理论生命、成就学术体系、彰显话语魅力,深入法实践充实法律思维、供养法治思维、锤炼法理思维。法理概念在数千年中华法治文明发展进程中萌生、流淌、跃动,在新时代全面依法治国、推进国家治理体系和治理能力现代化的征程中苏醒、焕发、升腾,是法理复兴之路与良法善治之景的和韵,是东方文明之光与马克思主义真理之光的交辉。     

Punishing Bodies,Securing the Nation: How Rule of Law Can Legitimate the Urbane Authoritarian State

Although authoritarian rule of law may seem an oxymoron, strategic reconfigurations of the “rule of law” can produce acceptance of law that observes procedure while erasing rights. By bringing into conjunction critical discourse theory and scholarship on the legal professions and political liberalism, this article shows how rulers can deploy rhetoric and legislation to produce derogations from the liberal content of rule of law while sustaining a state legitimacy built on claims to state realizations of rule of law. A close analysis of Singapore's Vandalism Act shows that silencing the critique of lawyers and constraining the power of judges has been crucial to a legitimation of the surveillance and criminalization of dissenters. The consolidation of state power effected via law and discourse might be seen as making the nation a notional panopticon—corporal punishment, even if conducted behind prison walls, becomes instructive public spectacle conveying the state's seeming omniscience and monopolistic command of law.     

The Re-Emergence of Conquest: International Law and the Legitimate Use of Force

Liverpool Law Review - The re-emergence of the issue of conquest of territory is one of the most contentious debates surrounding contemporary international law. This article investigates certain...     

Cosmopolitan Duty and Legitimate State Authority

In this paper I apply a suitably developed version of Joseph Raz’s service conception of authority to the debate over the legitimacy of state action aiming to fulfill cosmopolitan moral obligations. I aim to advance two interrelated theses. First, viewed from the perspective of Raz’s service conception of authority, citizens’ moral duties to non-compatriots are an appropriate ground for authoritative intervention by agents of the state. Second, international law based on these duties can also enjoy moral authority over government decision makers. An important source of the moral force of international law is derived from the power of international law to improve officials’ ability to recognize and conform to the totality of their reasons, which contributes to their states’ legitimacy.     

著作权法中合法来源抗辩规则的适用

合法来源抗辩是保护善意相对人,强化源头打击侵权的重要规则.通过对《中华人民共和国著作权法》(以下简称《著作权法》)第59条的分析,可以明确销售者应为合法来源抗辩的主体.著作权法上的合法来源抗辩不仅需要抗辩主体满足合法的购货渠道、合理价格等客观要素,还应具有主观善意.注意义务应只是法官在进行说理时的重要依据,而非合法来源...     

Assessing Legitimate Structures for the Making of Transnational Labour Law: The Durability of Corporatism

In recent years, there has been greater scrutiny of the legitimacyof governance within international and regional institutionsand an emerging interest in deliberative democracy. This paperexamines the potential impact of these trends on the survivalof current mechanisms for the making of transnational labourlaw, which may be thought to reflect corporatist rather thanpluralist or deliberative practices. We focus on two examples:the tripartite constitutional foundation of the InternationalLabour Organisation, which ensures that employer and workerrepresentatives share in standard-setting alongside governmentrepresentatives, and the predominantly bipartite process ofsocial dialogue between management and labour for the formulationof European Community social policy. Despite significant differencesin approach, both organisations have chosen to prioritise participationby trade unions and employer representatives within designatedbargaining structures that are ostensibly designed to achievesome balance in their relative influence; however, the reasonsfor this preference have not always been apparent. This paperinvestigates how corporatist structures have been adapted forapplication at the international and European level, and seeksto analyse their potential for legitimacy, and thereby theirdurability.     

The Ultimate Force of the Law: On the Essence and Precariousness of the Monopoly on Legitimate Force

In his new book, Fred Schauer adopts a prototypical approach to the law in order to reestablish the importance of “The Force of Law”, and I strongly support his claim that there are interesting things to be said about the relationship between law and force. One aspect concerns the special kind of force to which the law is related. In the tradition of political philosophy, this kind of force has often been characterized with the state's monopoly on legitimate force. Whereas the essay will support the idea that the law has a monopoly of force, it will challenge the idea that it is its legitimacy that makes it characteristic. It is a monopoly not so much on legitimate, but on ultimate force. The robustness of the force the law is—prototypically—related to, however, should not obscure the fact that the relation between law and force is quite delicate and precarious. Three strategies of the law to manage this fundamental precariousness are pointed out.     

Muslim Mandarins in Chinese Courts: Dispute Resolution,Islamic Law,and the Secular State in Northwest China

Many sociolegal studies have investigated the relationship between state law and informal law, examining alternative dispute resolution and popular justice as intersections between such types of law. However, such questions have received little attention in East Asian authoritarian states. I use the case of dispute resolution among Chinese Muslim minorities (the Hui) to reexamine the relationship between state law and Islamic law. Based on nineteen months of fieldwork in Northwest China, I argue that the Hui case shows codependence between the types of law. Law is deeply embedded in social relationships between the Hui and the party‐state. An analysis of personalistic relationships shows the ways in which religious and secular authorities access each other, transforming each other's law to augment their own legitimacy, but not without the potential for violence. The China case illuminates dynamics between Muslim communities and states that are prevalent elsewhere in the post‐9/11 period.     

The Revitalization of Islamic Penal Law: An Examination of Its Opponents

There is an increasing interest today in reestablishing Islamic Penal Law in most Middle East countries. The majority of the population apparently favors this change. There are, however, a minority opposed to such changes. This paper examines how those opposed to reinstituting Islamic Penal Law differ from others based on data gathered from 600 respondents in Kuwait. The findings indicate that those most opposed to such a change are the upper or upper middle class. They apparently are opposed not only to reestablishing Islamic Penal Law but also are less orthodox Muslems. They have had considerable more contact with the Western world but are a small but important minority in their society.     

European Law and International Regimes: The Features of Law Beyond the Nation State

Different forms of law are perceived of as possessing differing degrees of legal quality. A quality continuum suggests itself, running from 'high quality' national law, through to 'lesser quality' European law and to 'low quality' international law. This article seeks to explain the perceived differences in the quality of these laws with reference to legal theoretical perceptions of what it is that constitutes the law's quality. It argues that only a theory of law which identifies the core of the law's integrity as lying in its ability to act as a fulcrum between spheres of social and public discourse and the exercise of power can fully explain the divergence in legal quality between national, European and international law. With specific regard to the quality of European law, it concludes by arguing that it is weakened by its relative lack of social internalisation—in comparison with a higher degree of legal and political internalisation—within the European public.     

刑法类型化概念与法治国原则之哲理——兼论开放的构成要件之存在根据

一、问题的提出 犯罪是符合刑法中所规定的构成要件的行为。国家从大量的反社会行为中抽出一部分危害性严重的，作为法律上的犯罪类型加以规定成为当罚的行为，这种法律上的类型就是构成要件。因此，一般认为，构成要件就是指刑罚法规所规定的犯罪类型。构成要件作为刑法类型化概念与法治国的基本原则——罪刑法定主义之间，是唇齿相依的关系。罪刑法定主义是构成要件产生的思想基础，构成要件则是贯彻罪刑法定主义的基础性工程和体现。有什么样的罪刑法定主义，就有什么样的构成要件类型。...     

Islamic Law in Action: A Historical Discussion

This review essay engages Kristen Stilt's recent book, Islamic Law in Action: Authority, Discretion, and Everyday Experiences in Mamluk Egypt (2011), in a fashion that highlights its contributions to the study of Islamic law. In particular, it underlines the methodological arguments made in the book that might help us think about Islamic legal practice in sophisticated and historically grounded ways. As elaborated in the article, these arguments have important implications for modern as well historical settings. Specifically, Stilt's discussion of “Islamic law in action” reveals the inherent flexibility of Islamic legal practice to accommodate political change. The article also discusses how further research on the topic could benefit from specific approaches and orientations.     

Injustice and Employees' Destructive Responses: The Mediating Role of State Negative Affect

The focus of this study was employees' destructive behavioral intentions (i.e., exit, neglect, and aggressive voice) as a result of perceived injustice. In order to get an indication of the generalizability of the results, two studies employing different methodologies were conducted among different samples: a survey study (Study 1) among 244 female maternity nurses from The Netherlands, and a vignette study (Study 2) among 71 male and 43 female employees from an international company in South Africa. Furthermore, the second study tested whether the effects of injustice on destructive behavioral intentions were mediated by state negative affect. Two models appear to fit the data well. The first model suggests that interactional injustice gives rise to negative behavioral reactions through an increase in state negative affect. The second model shows that procedural justice can buffer the negative effects of low distributive justice. Specifically, employees report more negative affect and, subsequently, a stronger tendency to leave the organization only when both distributive and procedural justice are low. The theoretical and practical implications of these findings are discussed.     

Criminal Law beyond the State: The European Model

This article will analyse two models of criminal law beyond the State, which are here termed ‘eunomic’ and ‘dialogic’. It will then focus on one case study, European criminal law, which was inherently ‘dialogic’ until the last decade of the past century but has now quite unique features. In accordance with classic liberal views, criminal law has always been conceptualised as one of the most salient attributes of the sovereign State. The monopoly on the use of violence was to be legitimised by the State's concern for the sphere of autonomy of the individual. It is submitted in this article that it is precisely this condition that is lacking in the current European model, which promotes security‐oriented paradigms of self‐fulfilment and effectiveness. However, criminal law, if properly conceived, could in theory function as a powerful vehicle of integration.     

社会、国家与法——从法的视角思考国家回归社会问题

社会与国家在经历了曲折的合一与分离的往返运动之后 ,国家最终要溶于社会之中而实现向社会的回归。本文讨论了在具有长期专制主义传统的中国 ,法在促进国家不断回归社会中的作用 ,指出法是国家回归社会的桥梁 ,法必须也能够成为制约国家、特别是政府 (行政 )权力的重要力量。通过对权力的制约 ,使国家权力逐渐向社会回归 ,最终实现国家溶于社会的伟大目标。     

Tolerance and Law: From Islamic Culture to Islamist Ideology

Tolerance implies both renunciation and negotiation, concepts that assume truth as relative. The rationality of religious faith does not acknowledge the existence of a shared truth, but history reminds us that religions could be directed through their social representatives to engage in social realities. This had been the case with Islam, despite the existence of strong structuring of knowledge and the Ulemas who play a vital role in its control and reproduction.