A secret paradox of the common law

This essay recounts a fascinating if complicated piece of Anglo-American debate. My aim is to reach a conclusion about the importance of the notion of changing one's normative position as part of the act of “giving sufficient consideration” for a legal contract. In several journals and textbooks between 1894 and 1918 the major contract scholars of the time, e.g., Langdell, Anson, Pollock, Williston, Ames, and Corbin, discussed a special example which was thought to reveal a paradox in the common law of consideration. The problem had shown itself in the textbooks of Pollock in England and Langdell in the United States. The example is of two contracts made by three persons in which one contract with the third party repeats the content of an existing contract with the second party. It would appear that the party at the pivot experiences no new detriment in merely performing, or promising to perform, his pre-existing duty. If so, such oblique contracts with third parties must fail for want of consideration extended from the first party. About this difficulty the experts were anything but agreed. The cases were not consistent. At the root of this uncertainty is an ambivalence about the concept of consideration itself. Should it be conceived in terms of normative relations and changes of moral position or should it be conceived in valuative terms, as harms and benefits? The differences of opinion about the legal validity of oblique contracts is explained by this ambiguity, one which the common lawyer has not yet resolved.     

Gangs and governance in Russia: the paradox of law and lawlessness

ABSTRACT

The paper addresses the nature of gang governance. It questions the notion that gangs regulate social and economic transactions and create stable orders in certain territories. It shows that, while presenting themselves as upholders of the ‘law’ in their territory, the gangs also create a climate of uncertainty and fear. The gangs manipulate their own unwritten rules and set up traps for residents and businessmen. These traps are designed to deprive non-gang civilians of presumed rights and identities and extort their money. The paper uses Schmitt’s notion of ‘state of exception’ and Agamben’s idea of ‘bare life’ to explain how gangs function.     

Justice and power in civil law negotiations

The relationship between power and justice in civil law negotiations is discussed. It is argued that the concept of power is essential to understand justice behavior in civil law negotiations. Distributive justice appears to be hardly relevant in civil law disputes and should be replaced by retributive justice to understand the behavior of the parties. The analysis leads to the observation that justice is more likely to be relevant for the powerless party in civil law disputes than for the power-holder. I conclude that both the relative power and justice behavior cannot be studied without taking into account the perception by individuals of both the relevant norms and the salient characteristics of the interaction.     

Justice and equality in mental health law: the European experience

This is the text of a lecture delivered at the World Conference of the International Academy of Law and Mental Health in Sydney in September 2003 on the occasion of the award to the author of the Prix Philippe Pinel. Its theme is the potential of the European Convention on Human Rights to secure the human rights of people with mental disorders and disabilities, viewed in the context of the legislation on mental health and mental incapacity in England and Wales. Its conclusion is that the Convention is better at protecting them from unwanted or unnecessary treatment and care than it is at securing for them equal access to the treatment and care they want or need. The lecture has been updated to reflect developments in the United Kingdom since 2003.     

Justice at the confluence of law and economics

Law has long been combined with economic thought, but only recently has law been combined with economic theory. This article explores the implications of this development for theories of justice and interdisciplinary research. Value in economics is usually measured by price (the market tradition) or by satisfaction (the utilitarian tradition). The relationship of these concepts to equity in law is explored. Also explored is the relationship between bargaining theory and contractarian theories of justice. The article examines the possibility that methods and concepts developed in the economic analysis of law will prove useful to sociologists and social psychologists by contrasting the study of rational choice and the study of attitudes.     

“人肉搜索案”的社会诱因和法律困境

随着社会的进步和科技的发展,社会形态也必然发生变化,整个中国社会进入了以网络运用为代表的信息时代,这也导致了网络搜索成为一个需要面对的问题.其中,人肉搜索就是一个不可回避的社会问题.由于社会变迁,共同体规则衍变,旧有规则不能完全调适新问题,一系列现实问题不仅给法律带来了困境,也引发了人们对法律制度的思考.     

The bioethics and law paradox: an argument to maintain separateness with a hint of togetherness

This article analyses how bioethics and law interact and work together. The first half of the article provides definitions of both ethics and bioethics. The article then considers a number of different bioethical standpoints to demonstrate the variance of views in relation to bioethics. In addition, the first half of the article focuses on the different regulatory possibilities in regard to bioethical contexts. This demonstrates that law is of central importance to bioethics. This part also shows that even though law and ethics are often used simultaneously to achieve bioethical goals, law and ethics cannot be used interchangeably. Thus, even though it is somewhat inevitable that law will be used in the pursuit of the goals of bioethics, bioethics and bioethical principle should not be merely a vehicle for law-makers to utilise. The second half of the article focuses on the issues of autonomy and consent to demonstrate how law and ethics have developed in one of the foundation areas of bioethics.     

无诉讼即无法治--论宪法诉讼乃法治之精义

从宪政的意义上而言 ,法治的本质是宪治 ,即宪法之治 ,而宪治的核心则在于宪法诉讼 ;因为宪法诉讼制度是宪法自身的“免疫”系统 ,没有明确的宪法诉讼机制 ,宪法就无以抵御各种外来侵袭 ,违宪之法律和行为就得不到及时的纠正和制裁 ,违宪责任就无从追究 ;这样 ,宪法对于政府及其权力运作的规约能力势必阙如 ,而一部对政府没有现实规约能力的“宪法”是无论如何也不可能带来真正意义上的法治。因此说 ,法治的精义在于宪法诉讼 ,没有宪法诉讼 ,就没有法治。     

Keywords,case law and the Court of Justice: the need for legislative intervention in modernising European trade mark law

Recent preliminary references to the CJEU on online keyword advertising and registered trade mark infringement have exposed the challenges facing EU registered trade mark law in its response to new technologies. These cases and the challenges they pose provide a timely prism through which to examine the European trade mark law-making process and the role of the CJEU within that process. This article will employ an analysis of the way in which the CJEU has developed certain key new aspects of the law on ‘infringing use’ to explore concerns over the CJEU's role and approach. It will be argued that, driven by policy considerations, the CJEU has acted creatively to develop the law of infringement in ways that cannot be sustained by the TMD and CTMR and which are likely to cause increasing uncertainties going forward. With the European Commission currently considering reform of Trade Marks Directive 2008/95/EC and Community Trade Mark Regulation 207/2009/EC, this paper will argue that there is a need for more comprehensive and forward-looking legislative intervention than has yet been proposed and that such intervention will be essential to restoring balance in the European trade mark law-making process.     

Socially Appraising Justice: A Cross-Cultural Perspective

The impact and effectiveness of organizational justice efforts vary across cultures. Previous justice research has focused on such themes as outcome allocation, process criteria, allocation control, and decision justification largely from a Western point of view. This paper analyzes organizational justice perceptions from a cross-cultural perspective. More specifically, using the Hofstede cultural dimensions (individualism/collectivism, uncertainty avoidance, masculinity/femininity, and power distance), key justice areas are examined. Further, predictions as to the general salience of key justice areas are offered relative to a national culture's overall organizational justice preferences and tendencies.