Gendering the Legal Complex: Women in Sri Lanka's Legal Profession

Drawing upon feminist standpoint theory and interviews with pioneering women lawyers in Sri Lanka, I argue for a focus on women as a distinct category in ‘legal complex theory’. I consider the following questions in making this claim. What were the internal structures of the legal profession that the older generations of women lawyers encountered as they entered the profession and as they took up positions of leadership? In what ways, if at all, was the ‘culture(s)’ within the profession patriarchal? In what ways, if any, did the entry and advancement of women impact these internal structures of the profession and its culture(s)? And what can we learn from these experiences in predicting the future trajectory of the legal profession? The analytical expansion that I propose reveals gender-based dynamics within the legal complex, such as gender-stereotyped perceptions about women lawyers within the profession, the ‘feminization’ of the profession, and ‘gender segmentation’ within its different spheres.     

什么是法学研究——民法学习的一点体会

研究生学习阶段的学习目标最为重要的是什么呢 ?我认为就是“研究” ,就是要把法律的概念、原则甚至体系拿来研讨 ,区别它的科学与谬误、正义与非正义 ,因此 ,这个阶段的学习不是当收音机 ,不只是接收他人的观点 ,而是要自主分析、积极讨论 ,提出自己的观点 ,其核心就是“研究”。     

Legal Certainty and Correctness

What is the relation between legal certainty and correctness? This question poses one of the perpetual problems of the theory and practice of law—and for this reason: The answer turns on the main question in legal philosophy, the question of the concept and the nature of law. Thus, in an initial step, I will briefly look at the concept and the nature of law. In a second step, I will attempt to explain what the concept and the nature of law, thus understood, imply for the relation between legal certainty and correctness. Here three issues will be considered: first, the Radbruch formula as an answer to the problem of extreme injustice; second, the special case thesis, which claims that legal argumentation is a special case of general practical argumentation; and, third, the problem of the judicial development of the law.     

中國的高等法學教育向何處去？（續）

（接上期）三、關于法律職業能力的培養（一）觀念法律,有廣、狹義之分。狹義的法律,是指以通過國家司法考試、獲得《法律職業資格證書》爲從業前提的審判、檢察、律師等職業；廣義的法律職業是指以法律工作爲中心、以法律資源爲主要謀生手段的社會職業。它不僅限于前者，還包括立法、司法行政、政府法制等從事法律實務的職業和法學研究、法學教育、法制傳媒等生産法律文化産品的職業。能力也有廣、狹義之分。廣義的職業能力涵蓋合格從事某種職業所應具備的各種能力；狭義的職業能力僅僅是指合格從事某種職業所應具備的特殊能力。     

The Asymmetry of Legitimacy

State legitimacy is often said to have two aspects: an internal and an external one. Internally, a legitimate state has the right to rule over its subjects. Externally, it has a right that outsiders not interfere with its domestic governance. But what is the relation between these two aspects? In this paper, I defend a conception of legitimacy according to which these two aspects are related in an importantly asymmetrical manner. In particular, a legitimate state??s external right to rule affords it protections that include and go beyond what its internal right to rule enables it to do. This asymmetrical view, I argue, is preferable to its two main rivals: the view that a state??s internal and external legitimacy are separate issues, and the view that internal and external legitimacy are mirroring.     

THE ROLE OF SOLICITORS IN DIVORCE PROCEEDINGS*

“I was walking down the boulevard one day with my sister who was down for a week's holiday. She said off the cuff ‘When are you going to get divorced?’ I said ‘I don't know.’ Seeing a solicitor's office, I said ‘ I'll pop in here’—just the job, just like going in the shop for a loaf of bread. So I sees the receptionist. She said ‘ I'll see if he can see you straight away.’ Well, he gave me an interview straight away. Within an hour everything was done. He told me to bring all the gen I could in a couple of weeks time, which I did and then we got on with the job.”     

隐文本视角下的心灵真相——论晚年丁玲文艺思想的二重悖反

"文革"后丁玲复出文坛,其公开表达的文艺思想呈现出鲜明的悖反特征:一方面丁玲反复鼓吹文艺为政治服务,另一方面又有与上述论断截然相反的言论和实践.这种悖反一方面源于长期政治压迫下的心理困扰,也与现实中的宗派纠葛有直接关系,更深层的原因则是丁玲所汲取文化资源的内在悖反.<讲话>的政治文艺思想与"五四"文艺思想纠结在丁玲思想的深处,决定了其文艺思想的对立和冲突.     

首席法务官（CLO） 一个崛起的法律职业群体

在公司治理结构中,＂首席法务官＂（CLO）的头衔正日益成为其中重要的一极。企业法律事务究竟怎样开展？法务官们到底是怎样的一个群体？他们在公司治理结构中到底充当什么样的角色？发挥什么作用？成功的跨国公司的企业法务工作又有什么经验教训？目前中国的企业法务官群体又是怎样的一种状态？在本刊即将推出《法人.首席法务官》增刊之际,全球企业法律顾问协会（ACC）总部总裁费雷德.克雷布斯先生接受了本刊专访,这位杰出的公司法务专家对这一系列迫在眉睫的问题作出了极有价值的回答     

Mother India: The Role of the Maternal Figure in Establishing Legal Subjectivity

Psychoanalytic jurisprudence attempts to understand the images used by law to attract and capture the subject. In keeping with the larger psychoanalytic tradition, such theories tend to overemphasise the paternal principle. The image of law is said to be the image of the paterfamilias—the biological father, the sovereign, or God. In contrast to such theories, I would like to introduce the image of the mother and analyse its impact on the subject’s relation to law. For this purpose, I examine the history and use of the figure of Bharat Mata or Mother India and how it influences the Indian subject’s relation to law. When the subject is torn between his loyalties to the lawmaker–as–father and the nation–as–mother, who does he side with? Eschewing Greek myths and the Oedipus complex, I focus instead on Hindu mythology and the notion of an oedipal alliance to understand legal subjectivity in India. Lastly, I analyse a defining Indian political trial, the Gandhi murder trial, in which all these notions come to play and the accused justifies his decision to murder the father of the nation in the name of the motherland.     

The Hysterical Attorney: The Legal Advocate Within Lacanian Discourse Theory

In this essay, I apply Jacques Lacan'sfour discourses to the legal profession. A lawyer –i.e. a legal expert – engages in the Master'sdiscourse when he writes the law; he engages in theUniversity discourse when he interprets or attempts tojustify the law. In contrast, an attorney – i.e. a legal advisor – engages in the Analyst'sdiscourse when she counsel's her client; she engagesin the Hysteric's discourse when she represents herclient. From a Lacanian perspective, the two lawyer'sdiscourses are masculine, while the two attorney'sdiscourses are feminine. I divergefrom Lacan's view that the Analyst's is the mostradical discourse. The insight gained throughanalysis can only challenge and change the law iftranslated through the Hysteric's discourse. Consequently, despite dominant sexual stereotypes tothe contrary, to be an effective advocate should takeon a radically hysteric femininity.     

Legal Speech and Implicit Content in the Law

Interpreting the content of the law is not limited to what a relevant lawmaker utters. This paper examines the extent to which implied and implicit content is part of the law, and specifically whether the Gricean concept of conversational implicature is relevant in determining the content of law. Recent work has focused on how this question relates to acts of legislation. This paper extends the analysis to case law and departs from the literature on several key issues. The paper's argument is based upon two points: (1) Precedent‐setting judicial opinions may consist of multiple conversations, of which some entail opposing implicata, and (2) if a particular precedent‐setting judicial opinion consists of multiple conversations, of which some entail opposing implicata, then no meaningful conversational implicatum is part of the content of that particular precedent‐setting opinion. Nevertheless, the paper's conclusion leaves open the prospect of gleaning something in between conversational implicature and what is literally said, namely, conversational impliciture.     

Human Genetics Studies: The Case for Group Rights

In this essay, the author focuses on an underlying theoretical issue which she believes seriously affects our collective response to the idea of group rights in the genetic-control context. That issue is to what extent are our responses to claims of group rights hampered by our bringing to the table (consciously or unconsciously) a model which is structured to acknowledge only individual concerns? Put another way, to what extent are our objections to group rights in this context a product of our inability (or refusal) to imagine the idea of group rights, rather than the product of truly substantive concerns?     

About Legal Philosophy

In this article I will take into hand the ideas, which contain the principal political and ethical requirements of our time, which require the special attention of the jurists. To summarize these requirements I will use the term “humanitarianism”. I am aware of the fact that some shades of meaning of this notion do not reflect that what I have in my mind. Therefore, I will not attempt to give a strict definition of humanitarianism as I understand it. A more precise definition will be left for the moment, when the ideas embraced by this definition will have obtained more precise contours. For the first draft of concept I will observe at the beginning that the notion of humanitarianism is strictly linked to the notion of reason. It means that in all cases, when a man today and in future is concerned, we have to establish a philosophical disposition carefully, according to our best understanding, under the stimulating guidance of conscience, responsibility and all-embracing care. At the same time this responsibility means the denial of every “intellectual immolation”, false compassion, sanctimonious devotion and false amicability. (This is a shortened article from the original.)     

Punishment and Reform

The reform of offenders is often said to be one of the morally legitimate aims of punishment. After briefly surveying the history of reformist thinking I examine the ‘quasi-reform’ theories, as I call them, of H. Morris, J. Hampton and A. Duff. I explain how they conceive of reform, and what role they take it to have in the criminal justice system. I then focus critically on one feature of their conception of reform, namely, the claim that a reformed offender will obey the relevant laws for moral reasons. I argue on consequentialist grounds that this requirement is objectionable. Consequentialism has always accepted reform as one legitimate goal of punishment, but it will not accept the narrowly moral conception of it that we find in the quasi-reform theorists. I situate my criticism within criminal law theory, but I also consider the claim in moral theory that acting from moral motives has intrinsic value.     

The Restricting Claims Principle Revisited: Grounding the Means Principle on the Agent–Patient Divide

In an earlier article, I introduced the “restricting claims principle” (RCP) to explain what is right about the means principle: the idea that it is harder to justify causing or allowing someone to suffer harm if using him as a means than if causing or allowing harm as a side effect. The RCP appeals to the idea that claims not to be harmed as a side effect push to restrict an agent from doing what she would otherwise be free to do for herself or others, given an appropriate account of her baseline freedom. Claims not to be harmed as a means are not in that way ‘‘restricting.’’ The original RCP relied on a counterfactual account of the agent’s baseline freedom: What could the agent permissibly do if the patient were not present? I argue here that that counterfactual baseline fails. The revised RCP relies instead on a ‘‘toolkit baseline’’: Do the patient claims concern the property the agent needs to use? This toolkit baseline reflects the different ways that agents relate to others: as fellow agents with whom they divide up the resources of the world, and as patients who might be affected by their actions. The toolkit baseline, resting on this agent-patient divide, provides a superior account of an agent’s baseline freedom, and a better account of the moral ground for the means principle     

Nazism,Legal Positivism and Radbruch's Thesis on Statutory Injustice

The small article “Statutory Injustice and Suprastatutory Law” published in 1946 by Gustav Radbruch is one of the most important texts in 20th century legal philosophy. Until recently, its importance was said to stem from its renewal of ‘natural law’ and from its ‘formula’, according to which the value of justice should override that of legal certainty in extreme cases. In this contribution, a close examination will show that Radbruch's text is less univocal than often suggested. I argue that Radbruch deals here with the acute problems of apparent criminal legality during the Nazi-era rather than with problems of validity. In order to make this clear, I first briefly sketch Radbruch's personal history and the context into which the article fits. Secondly, I analyze the text itself and focus on how to understand the well-known grudge informer case. Finally, I pay some attention to the renewed topical interest of Radbruch's formula, owing to the fact that it was used in the trials against former-GDR soldiers who shot fugitives at the Berlin Wall,and their superiors. This revised version was published online in July 2006 with corrections to the Cover Date.     

SUMMIT ON UNIFIED FAMILY COURTS: SERVING CHILDREN AND FAMILIES EFFICIENTLY,EFFECTIVELY, AND RESPONSIBLY

As president of the American Bar Association when the “Summit on Unified Family Courts” convened in May 2007, Karen J. Mathis welcomed summit attendees. Recounting the many reasons children wind up in court, Mathis observed that society is lucky if these problems even come before the courts. Too often, she said, the underlying problems of destructive behavior among youth are lost in the shuffle of too many lawyers, case workers, and judges. “Many times they’re ignored by the professionals among us who are not trained to be aware that the problems even exist,” she said. The solution to this fragmented approach is unified family courts, she concluded.     

论法律真理

一般人们认为,法律不是真理,法律与真理是分离的。但从历史的维度看,法律与真理分离的时间非常短暂。20世纪中叶之后,随着"事实与价值分离"观念的倒塌,"法律真理"这一观念不证自明起来。但何谓法律真理?是"符合论"意义上的,还是诠释学意义上的?由于"符合论"法律真理理论遇到了诸多难题,导致了法律真理的异化,因此,法律真理应是诠释学意义上的真理。法律真理是人的存在状态,是人展现自我、规划自我的一种方式,是人为实现自身本质而进行的一种制度安排。理解法律真理的路径在于法律实践。