Introduction: Adoption, affiliation, and family recomposition-inventing family continuity

This special issue deals with adoption practices and family recomposition in different societies in the past. Children's survival and family continuity were of major concern, and individual interests were linked, if not subordinated, to family groups. There were many different ways to perpetuate assets and power within the framework of the family. In Europe, systems that stress the importance of patrimonial arrangements houses are generally associated with the Roman conception of property, whereas systems favoring egalitarian redistribution within enlarged kinship groups have affinity with “barbarian” customs. In Japan, China, or on the Pacific atolls, we find other kinds of family systems, but in all of them adoption, affiliation, or family recomposition give priority to family continuity and well-being, inventing solutions to conflict, penury, infertility, and death. No future could be imagined without children, and the succession of generations was secured by these practices, resulting in early geographical, social, and family mobility for children and sometimes young men and women.     

Continuity of aggressive antisocial behavior from childhood to adulthood: The question of phenotype definition

Aiming to clarify the adult phenotype of antisocial personality disorder (ASPD), the empirical literature on its childhood background among the disruptive behaviour disorders, such as attention deficit/hyperactivity disorder (AD/HD), oppositional defiant disorder (ODD), conduct disorder (CD), or hyperkinetic conduct disorder (HKCD), was reviewed according to the Robins and Guze criteria for nosological validity. At least half of hyperactive children develop ODD and about a third CD (i.e. AD/HD + CD or HKCD) before puberty. About half of children with this combined problem constellation develop antisocial personality disorder (ASPD) in adulthood. Family and adoption/twin studies indicate that AD/HD and CD share a high heritability and that, in addition, there may be specific environmental effects for criminal behaviours. “Zones of rarity” delineating the disorders from each other, or from the normal variation, have not been identified. Neurophysiology, brain imaging, neurochemistry, neurocognition, or molecular genetics have not provided “external validity” for any of the diagnostic categories used today. Deficient mental functions, such as inattention, poor executive functions, poor verbal learning, and impaired social interaction (empathy), seem to form unspecific susceptibility factors. As none of today's proposed syndromes (e.g. AD/HD or psychopathy) seems to describe a natural category, a dimensional behavioural phenotype reflecting aggressive antisocial behaviours assessed by numbers of behaviours, the severity of their consequences and how early is their age at onset, which will be closely related to childhood hyperactivity, would bring conceptual clarity, and may form the basis for further probing into mental, cognitive, biological and treatment-related co-varying features.     

Adoption and Victorian culture

In 1888, evangelical, educator and feminist Constance Maynard adopted Effie Anthon, a six year old girl from a Salvation Army orphanage. Her mother, Rosabianca Fasulo was an unmarried, Italian woman recently “rescued” by the Salvation Army. Maynard anticipated that Effie would one day join her at her college but she met none of the expectations for her. She entered domestic service but fell ill with tuberculosis and died in a workhouse in 1915. This is one particular case history of an adoption when the practice was not yet formalized but small numbers began to adopt children unknown to them. It tentatively opens up the history of adoption in Victorian Britain. It also illuminates some broader questions about family ties, the meanings associated with motherhood, and how the body and character formation were understood.     

Public markets, private orderings and corporate governance

In the New Property Rights approach the degree of incompleteness of markets is taken independently of the cost of the public ordering and of their efficiency relatively to private orderings. In this approach “public markets,” similarly to a Swiss cheese, are either assumed to be nonexistent empty holes (because of infinite third party verification costs) or assumed to be smooth and efficient (because of zero third party verification costs). When we allow for positive but not infinite third party verification costs we are necessarily pushed back to the insights of Commons, Coase, Fuller and Williamson. The degree of (in)completeness of public markets becomes an endogenous economic problem and managers can be seen as agents that make “second order” specific investments to run specific relations that cannot be efficiently handled by public markets. Managers and the public authorities build respectively private and public “legal equilibria” that set the working rules within which transactions can take place. Private and public legal equilibria are not only substitutes but also complements. This complementarity is an important source of the path dependency that characterizes the development of different legal systems. The framework is applied to GM’s acquisition of Fisher Body. We suggest that, contrary to the claims of the New property Rights approach, the advantages of the acquisition were not due to the superior incentives of the new private owners but should be rather related to the replacement of public markets by the new private ordering set up by Alfred Sloan.     

Practical guidelines on incorporating “partnering” within IT agreements for public sector bodies

“Partnership” and “partnering” are two of the most frequently used terms in public sector procurement. They may be used by both customers and suppliers to justify their respective negotiating positions. A supplier may argue that, since the agreement is a “partnership agreement”, there should be no service credits or liquidated damages payable. The customer on the other hand, may argue, on similar grounds, that it wants to benchmark the supplier and have a broad right to audit every aspect of the supplier’s business.But despite being well used phrases, most guidance relating to these concepts does not define how “partnerships” or “partnering” is to work in practice. While most talk of the supplier and the customer working together “in partnership” with common aims, there is little information available as to how this will be incorporated into agreements, particularly in the context of large scale IT procurements.¹ The purpose of this article is to review the available guidance and detail some of the ways in which this guidance can be incorporated into legal agreements.     

从“非正式帝国主义”到“法律帝国主义”:以近代中国的境遇为例

近代国际法理论框架下的"非正式帝国主义",由最初的"自由贸易"模式扩展至政治、司法等诸般间接控制样式。在"非正式帝国"的塑造中,合乎国际法规范的条约具备去疆界化与再疆界化的意义,即破除正式领土帝国的堡垒,重建非正式帝国的藩篱。法律无疑是实现"非正式帝国主义"不可或缺的重要支撑,而它本身也成就为"非正式帝国主义"的一种典型形式——"法律帝国主义"。以近代中国的境遇为例,法律帝国主义所表达的,正是在政策指引之下,借助条约规定方式,以治外法权为基本实践手段,通过司法机构的跨域构建以及法律职业人士的身体力行,以最终达成西方法播散的整体过程。对此,我们应有清醒的认识。     

Law of assembly in China: People''s Republic of China vs. Republic of China

This paper is a comparative study of law of assembly between the People's Republic of China (PRC) vs. the Republic of China (Taiwan) (ROC). The comparison is achieved by looking at how these two societies regulate and police assembly, procession, and demonstration (hereinafter “public assembly”). Particularly it looks at the constitutional mandate and legal limitations on police powers in managing such public gatherings, e.g. what are the role and functions, and powers and limitation of the police in dealing with public assembly application and conduct.This comparative project is conducted with a view to understand the relative development in police powers in the two Chinese societies, once linked by history and culture and now divided by geography and ideology. It is assumed that in order to achieve a political “unification” of the two societies under a “one country two systems” formula,or any other viable political settlement, some understanding of how the two legal systems work is important in breaching their differences.In a still larger context, this research rides the tide of comparative policing in exposing and explicating how police in these two closed societies, ROC (Confucianism) and PRC (Socialism), come to terms with social protests and political challenges; more broadly how they balance the forces of reform and control with the use of law.     

Domain names: Comments on WIPO''s new overview of selected UDRP questions

This article reports on five years of Internet domain name dispute resolution activity within the World Intellectual Property Organisation's Uniform Dispute Resolution Policy. The analysis incorporates findings from WIPO's publication of an informal “Overview” if the panellists themselves prepared the scheme.     

Verba and Voluntas – Conflict of Laws in Interpretation of Contracts

This paper aims to describe an existing legal practice of contractual interpretation in Estonian legal order. In order to investigate the semiotic essence of contractual interpretation and its limits, this paper narrows its focus on a notion “conflict of laws” (as developed by Roberta Kevelson). By conflict of law is meant a depiction of incompatibility or conflict of co-existing legal practices, the conflict, which is both internal and external to Estonian legal system. From the inner perspective of Estonian legal order, the conflict of law is subsequently reduced to the conflict in law, and being analyzed on the grounds of contract law, the conflict of legal rules, in fact becomes a issue of contractual interpretation. It is claimed in this paper that there has been a fundamental incompatibility between objective and subjective approaches to interpretation of contracts. As later as 19th century, with the development of systematic legal science, an apparent confusion of objective and subjective approaches was becoming transformed into an open and growing system of law, based on a fusion of both methods. This paper lays theoretical grounds for a practical test, which could measure the exact level of legal integrity between different elements of legal system.     

Free and unfree labor in Qing China: Emigration and escape among the bannermen of northeast China, 1789–1909

Though internal migration in China during the Qing era (1644–1911) was mostly unrestricted, the government tightly controlled the movement of peasants who worked state lands in frontier regions and certain other locations. Such peasants accounted for 5–10% of China's population. In the state farms of northeast China, households could move legally only from one place to another within the system. Departure from the system was illegal. In this article, one of the first quantitative studies of migration in late imperial China, we apply discrete-time event-history methods to longitudinal, nominative household register data from six northeast Chinese state farm systems to compare how characteristics of the farm system, village, and household influenced the chances of legal moves and illegal departures. We show that among these state peasants, who were supposedly “unfree,” migration was not uncommon. We also show that the determinants of legal and illegal migration differed substantially. We conclude with a discussion of the implications of these findings for our understanding of migration processes in late imperial China.     

On Some Connections Between Legal Communication and Violence

The first version of this article was written and published in 1989 in Tartu in Russian.¹ As perestroika gathered strength the possibility emerged to take a fresh academic look on concepts which had been dogmatically frozen by “historical Marxism” for many years. One of those laying in the dead end was the Marxist concept of law together with its relation to violence. For a young scholar studying at Tartu University 15 years ago, there was always a possibility to try to apply some ideas and approaches drawn from Yuri Lotman’s articles and lectures. The power of his ideas and its brilliant presentation had already for years fascinated everybody dealing with problems of society and culture in Tartu. The other sources of the present analysis are the ideas about the nature of law and legal communication as they appeared in the 1920s–30s in the works of several Soviet scholars as Eugene Pashukanis and Mikhail Reisner. Both scientists were later condemned and forgotten in the Soviet Union. I also felt very comfortable with the understanding of the nature of law as “language of interaction” expressed and developed by the American lawyer and scholar Lon L. Fuller. The present article focuses only on the logic of communication based on the principle of exchange, reciprocity/contract and mechanism (code) of symbolic equalizations necessary, for achieving such reciprocity. But it is appropriate to point out that in a broader context, contract and reciprocity in society are balanced by different types of principles of human interaction. In this broader understanding, L. Fuller and Y. Lotman are close in their interpretations of cultural interaction and human communication. If we compare Fuller’s article “Two Principles of Human Association”² to Lotman’s “‘Contract’ and ‘Devotion’ as Archetypical Models of Culture”³ we see their approaches are in fact complementary.¹ Kannike, S.H., “O nekotorykh svjazjakh pravovogo obshchenija s nasilijem. Istorija I sovremennost’”, in Tartu Ülikooli Toimetised 850. Studia luridica. Historia et theoria3 (Tartu: Tartu Ülikool, 1989), 76–93² Fuller, L., “Two Principles of Human Association”, in L. Fuller, (ed), The Principles of Human Order(Durham: N.C. Duke University Press, 1981), 67–85³ Lotman, Y.M., ““Dogovor” i “vruchenie sebja” kak arhitipicheskie modeli kul’tury”, in Uchenye zapiski Tartuskogo gosudarstvennogo universiteta 513. Trudy po russkoi I slavjanskoi filologii 332. Literaturovedenije: problemy literaturnoi tipologii I istoricheskoi preemstvennosti(Tartu, 1981), 3–16     

Building a post-war justice system in Afghanistan

This paper examines key dimensions of justice in post–war Afghanistan. These areshari'a(Islamic law), traditional institutions of informal justice (jirga), the Afghan interim legal framework, and human rights principles. It is argued that despite their apparent incompatibility, these various dimensions of justice could be integrated within a coherent framework of a new justice system in post–war Afghanistan –– a framework that would promote interaction between local institutions of informal justice and a district level court of justice, on the one hand, and between these two and a proposed human rights unit, on the other. On the basis of this analysis, an experimental model of a system of justice is proposed, which integrates local jirga and human rights units into the existing formal justice (based on shari'a and positive law) and law–enforcement institutions. This experimental model provides a multi–dimensional framework that both reflects the cultural and religious values of Afghan society, and at the same time, has the capacity to draw on human rights principles. It is maintained that the model has the capacity to deliver justice expeditiously and in cost–effective ways; it also has a strong potential to act as a channel of communication between ordinary people and a modern participatory state in post–war Afghanistan. However, in order to test the applicability of this model in the real world, it needs first to be thoroughly discussed among Afghan and international legal experts as well as among ordinary Afghan people, and then piloted in selected districts in Afghanistan.     

Sanctions, modeling, and deviant behavior

This study investigated the extent to which group influence (and particularly the modeling aspects of groups) specifies the relationship between the certainty of punishment and deviant behavior. An experiment was conducted in which sixty males played a game of “chicken” against a computer. The study was designed to assess the influence of subjects' exposure to deviant behavior by “models,” subjects' knowledge of the outcomes of deviance for the “models,” and the interaction of these variables with the probability of punishment. Analysis showed that exposure to the behavioral outcomes of models' deviant conduct either enhanced or weakened the effects of certainty of punishment, depending upon whether the models were rewarded or punished for their deviant behavior. Implications of the findings for the development of a theory of deterrence are drawn, and suggestions for future research are made.     

The rhetoric of personal loyalty to superiors in criminal justice agencies

Nowhere in public law is the idea of personal loyalty to superiors mentioned, yet criminal justice practitioners suffer from a “personal loyalty syndrome.” This syndrome holds them responsible to an altogether different set of loyalty expectations. They are often compelled to offer personal loyalty to unworthy superiors and, as a result, violate constitutional provisions, legal requirements, or the public good. While no organizational rules require any such loyalty, criminal justice practitioners are invariably taught that issues of loyalty at the workplace are so important that one cannot survive without personal loyalty to superiors. They are also reminded that violating such a “commandment” is a cardinal sin that can destroy one's career. This article discusses the arguments for and against personal loyalty to superiors and the dangers inherent in such relationships. It explains the grammar of loyalty at the workplace, explores the paradoxes of personal loyalty to superiors, and suggests a duty-based model as an alternative to the current model.     

Carbohydrate-deficient transferrin (CDT): A reliable indicator of the risk of driving under the influence of alcohol when determined by capillary electrophoresis

Carbohydrate-deficient transferrin (CDT) is a marker of chronic alcohol abuse, which has recently been introduced to evaluate the physical fitness for obtaining a driving license. The aim of the present study was to evaluate the prevalence of elevated CDT levels in subjects stopped while driving under the influence of alcohol by using a validated method based on capillary electrophoresis. The study was carried out on a group of 40 drunken drivers (group A) and on a control group (n = 51) of subjects chosen from the general population (group B). CDT was directly determined by capillary electrophoresis in free solution and UV detection at 200 nm. CDT results from both groups were classified as “negative” or “positive” on the basis of the cut-off set at 2.00% (CDT index). The subjects classified as “positive” in group A were 24 (60%), whereas in group B were 2. The subjects classified as “negative” in group A were 16 (40%), whereas in group B was 49 (96.1%). The comparison of the observed percentages, evaluated with the χ²-test, was highly significant (p < 0.001). The present study confirms the high prevalence of chronic alcohol abusers among drunken drivers and the usefulness of CDT as a predictor of the risk of drunk driving.     

Safe harbor provisions of Chinese law: How clear are search engines from liability?

It seemed well-settled that Chinese law provided owners of search engines with safe harbor against unreasonable interference from copyright holders. But the judgment of IFPI v. Yahoo! shook this belief. This controversial judgment is related to the rather convoluted applicable legal rules, with joint infringement rules interweaved with the safe harbor provisions. To fully expose the scope of search engine provider's liability and the legal issues of the Yahoo! China ruling in particular, this paper examines the Chinese provisions for joint infringement and liability for search engines, discusses all the Chinese “safe harbor” provisions, those in the Regulation RCIN, the Judiciary Interpretation for Digital Copyright and the Administrative Measures for Digital Copyright. Following this discussion, suggested errors in legal application in the Yahoo! China case are analyzed and a suggested right approach is argued.     

Maids and mothers: Domestic servants and illegitimacy in 19th-century Australia

Historically, domestic servants have been overrepresented amongst women whose ex-nuptial pregnancy became a public “problem.” Despite such apparent vulnerability, female rescue-workers also saw domestic work as the pathway to redemption for such women. Drawing on extensive Australian data on single mothers and their children in the 19th-century, this article investigates the complex relationship between domestic service and illegitimacy. While it will argue that the overrepresentation is more apparent than real, a product of the situation of the domestic servant whose workplace was her home and whose continued employment was often dependent on maintaining high moral standards, it will also contest the viability of domestic service as a “solution” for the mother compelled to work to support her child.     

The value of life in death: Multiple regression and event history analyses of homicide clearance in Los Angeles County

While clearance rates of homicides have declined over the last three decades, there still remains limited research on the topic. In recent studies, scholars had argued that legal factors best explained homicide clearance. They stated that extralegal variables that had proven to be important and significant for explaining other processes in the criminal justice system were not as helpful in explaining homicide clearance. This article challenges those findings. Utilizing multiple regression and event history analysis techniques, this article shows that extralegal variables such as the gender and race or ethnicity of the victim affect the likelihood of clearance and time needed for solving the murder. The research examined all homicides committed in Los Angeles County from 1990 through 1994. Findings demonstrated that some victims “received more law,” as Donald Black argued, and that not all victims' lives were equally valued.     

Official standards versus actual criteria in bond dispositions

The setting of bond in a first appearance court in one southeastern judicial district was examined to determine its relationship with official standards based on the recommendations of the American Bar Association advisory committee on standards for criminal justice and the National Advisory Commission on Criminal Justice Standards and Goals. Eighteen measures of five different recommended standards were considered. Only seriousness of charge showed apparent strength in its relationship with bond. The authors suggest a “facility hypothesis” (that court officials gravitated toward factors such as seriousness of charge) that may be readily processed and understood within constraints of time and organization. As added support for this hypothesis, defendants' demeanor in court is also shown to be significantly related to bond in the present study. These legal and personal criteria may be more identified as indicators of defendants' culpability than many other considerations recommended by the study commissions. Use of other official recommendations may require changes in the concepts of defendants held by court personnel or drastic changes in the organization of first appearance in court.     

Factors influencing help-seeking behavior among battered Korean women in intimate relationships

In total, 123 battered Korean women who used domestic violence agencies were asked where they had turned for assistance in response to intimate partner violence. This study examined the factors related to use of formal and informal resources by these women. Formal resources included police, medical, legal, and shelter; informal were family or neighbors. Findings revealed that (a) the women studied used a variety of resources and that (b) income, violence-related injuries, and partner child abuse were related to whether they contacted police. Injury and partner child abuse were related to contacting a medical doctor/medical facility. Income, relationship status, and partner child abuse were related to approaching family or neighbors. The key finding was that partner child abuse increased the likelihood of battered Korean women seeking help from formal service resources and informal networks. This suggests the need for integrative services that link women's and children's protective services in order to meet the needs of both victims and children.