"Jurisdictional Politics" in the Occupied West Bank: Territory, Community, and Economic Dependency in the Formation of Legal Subjects

This article examines the distribution of legal rights in the Israeli occupied West Bank. It argues that legal rights are distributed through a "jurisdictional politics" that tries to stabilize the contingent relationship between political community, territory, and legal subjects. In particular, this jurisdictional politics seeks to delimit the contradictory boundaries of the Israeli state by creating distinct categories of person out of the populations that live and work in the region. These issues are addressed by examining a dispute concerning the jurisdiction of Israeli law over Palestinian workers in Israeli settlements in the West Bank. The article ends by arguing that in the context of multiple movements of people, capital, and military force, attention must be paid to the often contradictory ways in which jurisdictional regimes seek to produce particular types of citizens and subjects.     

Rights as a Divide‐and‐Rule Mechanism: Lessons from the Case of Palestinians in Israeli Custody

Critics have highlighted the complicity of human rights law in mass disempowerment and domination—a criticism equally applicable to child law. This article investigates this issue, as evidenced by three recent developments that Israel has justified by invoking these legal frameworks: an increased separation of Palestinian adults and children in Israeli custody; the Israeli legal system's growing preoccupation with “rehabilitating” the now‐segregated Palestinian children; and the Israeli authorities' ever‐diminishing interest in such rehabilitation for adult Palestinian prisoners. By canvassing the legal architecture, judicial rationalizations, adverse effects, and sociopolitical context of these developments, this article foregrounds their divide‐and‐rule logic and structure of driving a generational wedge between Palestinians and potentially weakening their political ties, solidarity, and resistance.     

Fuzzy Legality and National Styles of Regulation: Government Intervention in the Israel Downstream Oil Market

This article examines the role of statute law in regulation and government intervention through a detailed historical case study of a crucial retail market. The history of state intervention in the Israeli oil supply market is dominated by "fuzzy legality," a concept expounded in a former article. Legal fuzziness allowed the industry, acting in concert with the government regulator, to retain a lucrative, practically non–accountable arrangement in changing politico–economic climates. Three central forces encouraged continuing fuzziness: a "cloud" of state security, institutional stickiness that preserved colonial mandatory legal structures, and a prevalent national culture of nonlegalism. The article ends with a careful suggestion regarding the Israeli national style of regulation. Compared to American "adversarial legalism," and its opposite, "consensual nonlegalism" the Israeli style may be termed "adversarial nonlegalism," and holds less promise for balancing market and public interests.     

Translating Human Rights of the “Enemy”: The Case of Israeli NGOs Defending Palestinian Rights

This article explores the practices, discourses and dilemmas of the Israeli human rights NGOs that are working to protect and promote the human rights of Palestinians in the Occupied Territories. This case can shed light on the complex process of “triangular translation” of human rights, which is distinct from other forms of human rights localization studied thus far. In this process, human rights NGOs translate international human rights norms on the one hand, and the suffering of the victims on the other, into the conceptions and legal language commonly employed by the state that violates these rights. We analyze the dialectics of change and reproduction embedded in the efforts of Israeli activists to defend Palestinian human rights while at the same time depoliticizing their work and adopting discriminatory premises and conceptions hegemonic in Israeli society. The recent and alarming legislative proposals in Israel aimed at curtailing the work of human rights NGOs reinforce the need to reconsider the role of human rights NGOs in society, including their depoliticized strategies, their use of legal language and their relations with the diminishing peace movement.     

Street as Courtroom: State Accommodation of Labor Protest in South China

Drawing on data collected from district-level governments, this article studies how the Chinese state responds to labor protests in South China. It examines both the internal logic and operational patterns of the state response involving the local courts and an assortment of government agencies. Internal documents and interviews reveal an emerging mode of state reaction. In the context of protest, the courts and related government agencies engage protesters on the street, which often grants a favorable resolution. This "street as courtroom" is a result of the weak capacity of the legal system coupled with a government-wide campaign to build a "harmonious society." These findings compel researchers to reconsider the institutional boundaries of the prototypical court, the outcome of social protest, and the appropriate role of the courts in China.     

司法裁判引证法律学说的功能研究——基于生效裁判文书的实证分析

法律学说是连接立法与实践的知识储备和理论桥梁,也是推动司法与社会互动的知识引擎和理论动力。学者的学术观点是法律学说的直接体现。在我国,存在司法判决引证法学学者观点的现象。实证研究表明,268份样本裁判文书中,有60位法学学者的观点被引证307次。法律学说在裁判文书中发挥着解释法律、论证说理及补充法律漏洞等作用,从而增强法官对法律事实性质或裁判结果判断的合理性和合法性,提升裁判结果的可接受性。从应然层面来看,法律学说要为司法裁判提供可能的参考答案,为司法裁判提供有效的法律方法以及通过司法裁判总结科学的司法规律。实证研究与理论分析表明,虽然司法判决可以成为法律学说的“试验田”,但是从主题任务和实践立场两分的角度看,法学与司法的适当分离是法治持续进步的阶梯。     

A Judicial Abandonment of Blacks? Rethinking the “State Action” Cases of the Waite Court

This article reconsiders the conventional wisdom that the Supreme Court definitively abandoned the freedmen to their former masters through the "state action" decisions of the 1870s and 1880s. Arguing that anachronisms distort our understanding of this critical period, I offer an historical institutional analysis of state action doctrine by recovering the legal categories, assumptions, and distinctions that constituted judicial discourse about the state action rule. Showing that federal power to protect blacks was more intact than scholars realize, I also add a perspective from the sociology of knowledge. By examining a series of modern developments that erased the contexts of the state action decisions, I show how institutional practices gave rise to the anachronisms that this article seeks to correct.     

以董必武“党政分开”思想考量“县委书记高配”问题

董必武关于依法治国必须坚持党的领导、党与政权机关相对独立、党对政权机关进行正确领导等＂党政分开＂的经典宏观理论为我们提供了对当前＂县委书记高配＂这一相对微观问题进行分析、评价与完善的路径。由于＂县委书记高配＂这一模式在法律依据、逻辑进路、预期结果三个方面都存在大量违反党政分开原则的因素,因此,在董必武相关思想的指导下,通过党内监督和党外民主监督并用的方式,将会对＂县委书记高配＂困境发挥重要的纠偏作用。     

“不知法不免责”准则的历史考察

刑法中事实错误与法律错误分类的现代意义与罗马法无关。对“不知法不免责”准则的发展历史的考察表明,无论在大陆法的语境中,还是在普通法的语境中,现代的“不知法不免责”准则都建立在知法的推定的基础之上。知法的推定与近代以来国家权威的扩张与治理方式的理性化存在紧密联系。借助知法的推定,“不知法不免责”准则与责任主义在古典的刑法理论体系中得以自洽共存。在知法的推定动摇之后,为维护“不知法不免责”的传统立场,人们提出诸种新的理论根据,但这些根据无法使传统立场正当化。     

Israeli press and the war against terrorism: The construction of the ‘liquidation policy’

Since November 9, 2000, about a month after the break out of the Palestinian uprising, the Israeli government had launched a military strategy of assassinating Palestinian activists it deems to be security threats in the West Bank and Gaza. This study examines how the daily press covered this policy and how the assassinations were constructed in the news media. The analysis focuses on the handling of the killings carried out in November and December 2000, because of the importance of the initial frameworks of meaning and interpretation. It is shown that the reporting regarding the extreme measures taken by Israel, took place without any sense of criticism. The newspapers gave a wide coverage to the IDF version of the events, quoted largely senior security officers and adopted official definitions, including the assumption that IDF only kills people directly involved in terrorist attacks. IDF killings were depicted as a reaction to Palestinian terrorism, and presented in vague, distancing and laconic terms. Palestinian violence was identified, detailed and received prominence in many ways. It is argued that the structured relations between the press and its military sources granted a wide range of legitimacy to the assassinations and enabled the Israeli government to pursue its policy and even extend it. The fact that these assassinations brought an escalation in the conflict and contributed to the continuation of terrorist attacks was never an issue.     

法治及其社会资源——兼评苏力“本土资源”说

鉴于中国法治建设和法律实施中存在的问题,有必要重新检视苏力的“本土资源”说。中国法治建设之所以不很成功,以及现代法律制度之所以在中国社会“水土不服”,最重要的原因,不是“本土资源”被重视不够,而是“社会资源”(即社会成员之间的相互信任)供给不足。归根到底,是由于中国社会目前面临严重的信任危机。     

法律下的中国：一个构建法治中国的法理议题

构建法治中国是中国当代社会的基本共识,也是执政党法治观的集中表达。共同建设法治观和一体建设法治观建立在法律的同一性原则上,也承认了国家、执政党和社会的相对独立性。执政党法治观是构建中国国家法治观的前提,其落脚点在于对中国国家共同体的具体阐释。从法律的规范角度理解中国国家共同体,显示出其与历史中国、文化中国和政治中国等视角在方法论、内容上和目标上的差异。法律共同体揭示了公民身份对法治中国的构成性功能。法律下的中国作为一个时代命题需要处理政府集权和行政集权、宪法建制与公民忠诚、全球规则与中国国家行为等关系,破解国家权力高度统一与集体能力低下的历史悖论,创造国家治理能力法治化的总体性方案。     

Legal Emotions: An Ethnography of Distrust and Fear in the Arab Districts of an Israeli City

Recent sociolegal scholarship has explored the role of emotions in lawmaking and policymaking on security and crime issues. This article extends this approach to the relationship between law enforcement and affect by addressing the role of policing and security agencies in the (re)production of long‐term emotions, which bind a collective and fuel ethnonational division. An ethnography of the distinct emotional climate within the Arab districts of Lod, an Israeli city, shows that this climate is structured by two emotions: rampant distrust toward friends and neighbors, and intense fear of the Israeli authorities. This emotional climate is the product of the subterranean ties of Lod Palestinians with the Israeli security agencies as well as their experiences of the blurred line between state security and crime control enforcement. I embed the initial creation and relative stability of this emotional climate in the broader relationship between the Israeli state and its Palestinian citizens from 1948 to the present. The article concludes with a discussion of how the law enforcement's affective production has consequences for the salience and scope of citizenship and by arguing for a greater focus on the link between law enforcement, collective emotions, and processes of inclusion and exclusion.     

The Ideal Socio-Legal Order. Its "Rule of Law" Dimension

Abstract. The author aims at defining the borderlines of the concept "rule of law." This has been often inflated to encompass several dimensions of an ideal legal order. The author on the contrary believes that the "rule of law" ought to be a "thin" ideal. As a matter of fact, when the "rule of law" signifies almost any dimension of an ideal legal order, it comes to stand for nothing essential in particular. Deflation is then advocated for the rehabilitation of the normative content of the "rule of law." This means that the "rule of law" should be defined as a concept covering only some well delimited dimensions of an ideal legal order.     

Rule of Law with Chinese Characteristics: The Role of Campaigns in Lawmaking

China increasingly relies on its legal system to regulate a broad spectrum of social and economic activity. There is, however, widespread failure to observe the law, which periodically leads to social crises and popular unrest. The Chinese state is not, of course, alone in experiencing this, but it responds to enforcement failures in distinctive ways. This article examines one such response. In this article, we explore the role played by the enforcement campaign in the development of the Chinese legal system. We focus on one campaign in particular: the campaign that was waged between 2004 and 2007 to redress the chronic failure to pay wages. Chinese enforcement campaigns are not simply directed at securing greater compliance with existing law. They are integrally linked to cycles of law reform in the PRC. Whilst their main impact is on enforcement, they also have an important role in influencing the drafting of legislation and the interpretation of law. This article documents the impact of this campaign on the production of law: in speeding up the iterative process of lawmaking, interpretation, and implementation, with production of important reforms to existing labour law in 2007 and 2008. It is the strong “planned” nature of the campaign and its emphasis on state leadership of lawmaking and enforcement that continues to shape the development of China's particular version of the “rule of law.”     

Social Network Analysis and the Diffusion of the Strict Liability Rule for Manufacturing Defects, 1963–87

This article reports the results of a study that uses social network analysis to compare the persuasiveness of legal precedents in the diffusion of the strict liability rule for manufacturing defects. This new study tests which legal precedents were most influential and also whether certain state judicial variables influenced the diffusion process. The results are striking. The federal circuit regions appear to define an important reference group in the diffusion process, and social network effects dominate economic and political variables. In addition, the de facto separation of powers in the enactment of new state legislation appears to influence courts' propensities to adopt the strict liability rule. When the executive and legislative branches were controlled by the same political party, regardless of whether it was Republican or Democratic, state courts were more inclined to adopt the strict liability rule.     

论西方法治政府的理念逻辑及其借鉴价值

西方法治政府理念具有人类普遍的进步性,它保护人权以申张个人自由,实行民主政制以维护公民政治权利,实行法治以匡正政府权力界限。西方法治政府理念历经共和主义、民主主义、自由主义、法治主义到服务主义的演进过程。其中,共和主义确立政府形式,民主主义解决主权归属和政府合法性,自由主义表征政府目的,法治主义护佑公民权利,服务主义标明政府行为理性。这些理念对我国的法治政府建设具有重要的借鉴价值。     

民主政治对建设社会主义法治国家的作用

本文通过对社会主义法治国家基本特征的论述及实现法治途径的比较分析,提出了我国应选择推行型法治途径,并在此基础上阐释了民主政治对社会主义法治国家形成的作用。     

湖南法治政府建设实践的经验启示

2008年以来，湖南省出台了一系列政策法规文件，构筑形成了全面建设法治政府“一纲要一规划两规定六办法”的政策法规格局，并在具体实践中真抓实干、敢为人先，取得显著实效，引起全国上下广泛关注，形成中国法治政府建设所谓的“湖南模式”。“法治湖南”实践正在以其独特的内容和魅力促动着中国法治政府建设全面起航。通过探讨促动“法治湖南”建设实践动因，详细分析限权和服务为轴的湖南法治政府建设实践：一方面通过程序规控行政权力，达致“正确地做事”之目的，另一方面通过规定政府服务内容，追求“做正确的事”之目标。在此基础上，解析了湖南法治政府建设实践的经验启示。     

Fly by Night or Face the Music? Premature Dissolution and the Desirability of Extended Liability

Premature dissolution can be a rational corporate response tothe threat of future liability. Although early dissolution iscostly to a firm, liability may be more so. The way in whichliability rules can exacerbate this extreme form of liabilityavoidance is of interest, since "fly-by-night" firms generateparticularly large social costs. In particular, we explore theconsequences of liability that is extended to the business partnersof an insolvent or absent tortfeasor—a relatively commonlegal response when tortfeasors abandon obligations. Extendedliability can be desirable; however, if extended liability isanticipated, business partners themselves may choose to flyby night. We show how the preferred liability rule, includingno liability, depends on the relative costs of premature dissolutionand future obligations. The analysis also sheds light on a setof interrelated legal issues, such as the role of the trustfund doctrine and state dissolution statutes.