Planning Facts Through Law: Legal Reasonableness as Creative Indexicality and Trans-categorical Re-configuration

International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique - Legal reasonableness and its theoretical analysis are often gauged on judicial activity....     

“商标共存”制度之法律质疑

“商标共存”是司法实践发展而来的原则,它解决的是两个相同或近似的商标均获得商誉后能否同时存在于各自市场的问题.本文在考虑商标的混淆性理论和探讨商标符号使用、商标性使用后,认为“商标共存”是个伪概念,没有独立的价值,而“符号共存”才是其更恰当的称谓.     

New Legal Moralism: Some Strengths and Challenges

The aim of this paper is to critically discuss the plausibility of legal moralism with an emphasis on some central and recent versions. First, this paper puts forward and defends the thesis that recently developed varieties of legal moralism promoted by Robert P. George, John Kekes and Michael Moore are more plausible than Lord Devlin’s traditional account. The main argument for this thesis is that in its more modern versions legal moralism is immune to some of the forceful challenges made to Devlin by Hart, Dworkin and Feinberg among others. Second, however, the paper challenges the new generation of legal moralists and suggests some areas for further development. Although Devlin’s position has been scrutinized thoroughly in the literature on the philosophy of law, there has, to my knowledge, been no comparable, systematic critique of these different proponents of legal moralism.     

Governance,Proceduralisation and Justice: Some Challenges to the Legal Paradigm

In 1989, Rudolf Wiethöltner alleged that we are witnessing a ‘failure of law’ in terms of its obligation to achieve ‘just law’. This paradox at the very heart of law – in essence, the impossibility of the realisation of legal justice twinned with the law's inability to cease trying to attain this goal – has been accommodated to a degree by the utilisation of a proceduralist paradigm that relies upon the contingency of governance, but this is now coming under renewed scrutiny. This article will put forward three arguments in this respect. The first section will argue that the turn to governance and the resultant procedural paradigm are both consequences of the ‘failure of law'; the second will point to the inherent weaknesses of the procedural paradigm that can be said to stem from this very failure; while the third will discuss some of the challenges issued to those still reliant upon the legal paradigm.     

地震速报预警的法律挑战——政企关系、风险与责任

目前,地震速报预警是优于地震预测预报的防震减灾工具,其服务供给机制应当区分两种模式,点对面模式由政府通过自建网络或向企业采购后对社会发布信息,点对点模式则交由市场自由竞争,政府适当监管。由于速报预警的技术误差无法完全消除,预警不当触发可能造成严重后果,政府必须对该种技术风险予以规制,具体规制方式包括强制信息披露、设定服务标准和行政许可。当预警触发不当引发法律责任时,政府可能承担国家赔偿和国家补偿责任;企业面向公众可能承担违约责任或侵权责任,面向政府则可能承担公私混合责任,但企业可以通过保险机制分散部分责任。     

Invasive Alien Species and the Protection of Biodiversity: The Role of Quarantine Laws in Resolving Inadequacies in the International Legal Regime

There is growing awareness of the environmental problems causedby the introduction of invasive alien species, described bythe IUCN as one of the major threats to biological diversity.Despite difficulties in definition and identification, internationalregimes have increasingly attempted to tackle the issue, withover 40 treaties referring to the regulation of invasive species.But current international law is acknowledged to have severeshortcomings. Quarantine controls, though originally designedto protect human health and agricultural commerce, could playa critical role as a country’s first line of defence incontaining the spread of invasive alien species. The internationalquarantine regime is conceptually well placed to spearhead thefight against invasive alien species, but there are considerableproblems with the current structures. An analysis of how currentinternational trade law and in particular the 1994 Agreementon Sanitary and Phytosanitary Measures may conflict with internationaland national quarantine measures shows that the World TradeOrganization, in its enthusiasm to prevent quarantine laws beingused as a disguised restriction on trade, has discouraged membersfrom using such laws to stem the spread of invasive alien species.Much greater cooperation between the relevant parties will berequired to reverse this trend.     

The ECB's Membership in the IMF: Legal Approaches to Constitutional Challenges

Abstract Although the European Central Bank (ECB) is only an observer in the International Monetary Fund (IMF), its membership in the IMF will spark constitutional changes for both the EU and the IMF. The ECB's participation in IMF activities has so far been undertaken pragmatically, and is likely to evolve over time. This arrangement will limit the ECB's ability to fully develop in international monetary cooperation. This paper reviews what kinds of constitutional challenges the ECB faces in its bid for membership in the IMF. The research is based on the legal method and assesses the relevant provisions of both the EC Treaty and the IMF's Articles of Agreement. It also suggests some feasible approaches for ECB membership in the IMF.     

Legal Rights and the Limits of Conceptual Analysis: A Case Study

Legal philosophers divide over whether it is possible to analyze legal concepts without engaging in normative argument. The influential analysis of legal rights advanced by Jules Coleman and Jody Kraus some years ago serves as a useful case study to consider this issue because even some legal philosophers who are generally skeptical of the neutrality claims of conceptual analysts have concluded that Coleman and Kraus's analysis manages to maintain such neutrality. But that analysis does depend in subtle but important ways on normative claims. Their argument assumes not only a positivist concept of law, but also that it counts in favor of an analysis of legal rights that it increases the number of options available to legal decisionmakers. Thus, whether Coleman and Kraus's analysis is right in the end depends on whether those normative assumptions are justified. If even their analysis, which makes the thinnest of conceptual claims, depends on normative premises, that fact serves as strong evidence of the difficulty of analyzing legal concepts while remaining agnostic on moral and political questions.     

20世纪英美法理学论战中的概念分歧

20世纪50年代以来的英美法理学异常繁荣,各种理论进路纷至沓来。哈特与凯尔森、哈特与富勒、哈特与德沃金、德沃金与菲尼斯、拉兹与菲尼斯、拉兹与科尔曼的争论此起彼伏。他们的法律理论回应了不同的问题并提出了不同类型的概念主张,他们的概念主张具有不同的理论目标。从概念分析的角度看,20世纪英美法理学中的许多论战都是概念分歧,法学家的争论无非是他们的各说各话,许多貌似冲突的主张实际上是相容的。     

Law as a Social Construction and Conceptual Legal Theory

Law and Philosophy - A currently popular view among legal positivists is that law is a social construction. Many of the same legal philosophers also argue that before one can study law empirically,...     

中国宪法的宪政取向与缺失--基于中国现行宪法的文本分析

在人类政治智慧的发明中,宪政是最有可能实现民主、自由、人权、法治和公正,最有利于保证社会秩序和国家稳定的制度设计和价值理念,现代宪政蕴含的逻辑至少包括人民主权、宪法法律至上、尊重和保障人权、权力机关优位、依法行政、公正司法、监督和制约公权力等方面.我国现行宪法虽在很大程度上体现了现代宪政文明的价值取向,但仍存在着宪法价值取向上国家主义至上和过于理想化倾向、宪法基本原则表述不明确、公民基本权利与自由保障乏力、国家权力分配体制不明确、秩序缺位和面临宪法实施困境等宪政缺失.对此在宪政建设过程中必须予以正视,以弥合宪法与宪政的差距.     

中国法律服务市场开放的挑战和机遇——在理想与现实之间的思考

WTO作为制度性的框架,无论我们对它作何种评介,在客观上都影响着世界大部分角落的经济、社会乃至政治生活,中国法律服务市场的开放,就是这一制度性框架的影响之一。对于这种影响和开放,我们还未来得及作全面深入的分析,因此,仅根据短短几年时间的经验,就做出一个肯定或否定的判     

Personal Data Protection in Nigeria: Reflections on Opportunities,Options and Challenges to Legal Reforms

The right to personal data protection is, without doubt, an important right in the jurisprudence of rights in the contemporary information society. It is becoming as crucial as other orthodox human rights and also attracting significant attention from academics, lawyers, human rights activists and policy makers. In spite of the growing attention data protection receives at international and regional levels, Nigeria is still lagging behind many competitor states like South Africa in establishing an effective legal framework to protect personal data. Individuals’ personal data is being collected and used without any serious form of control to check against abuse. This paper reflects on opportunities, option and challenges to legal reforms on data protection in Nigeria. It contends that certain legislative and practical challenges stand in the way of an effective legal regime on personal data protection. The paper suggests appropriate legal reforms that are needed to enable prevent the increasing risks of violating the right to data protection in a country that is making rapid advances in Information and Communication Technology but hamstrung by an outdated regulatory framework.     

Return to Work for Healthcare Professionals with Substance Use Disorders: Clinical, Legal, and Ethical Challenges

Occupational health providers (OHPs) and other clinicians who assess readiness to work have a difficult task in assessing return to work for healthcare professionals (HCPs) with substance use disorders (SUDs). About 10 to 15 % of HCPs will misuse drugs or alcohol at some time in their career, yet they are often reluctant to seek help. This paper reviews the clinical challenges of assessing SUDs in HCPs, including risk factors, prognosis, and limited evidence base for work restrictions. Furthermore, ethical and legal challenges throughout the return to work process are reviewed for stakeholders such as HCPs with SUDs, OHPs, other providers, employers, and the public at large. Suggestions are made for stakeholders, particularly for OHPs and other providers, who are navigating this complex environment.     

刷脸支付的法律挑战及规制路径

刷脸支付是便捷性高的人脸识别新业态以及拓展性强的互联网支付新模式,带来了刷脸风险与支付风险勾连、生物信息安全风险向后手自动化决策风险蔓延等新问题,现有的知情同意框架、公共监控信息规则等面临新挑战。围绕人脸识别的行业规章、司法解释、信息保护规则等新规则相继涌现,但软法、硬法交织的立法格局,尚未形成可以波澜不惊地化解刷脸支付风险的动态规范。为充分保障人格权益、促进科技向善,以强化行业自律为导向,规制刷脸支付的新方法、新手段,可以从三个方面展开:其一,以帕累托标准重构侵权行为惩戒和数字转型升级之间的关系;其二,引入贯穿刷脸支付全流程的外部审查体系;其三,围绕刷脸支付业务样态建立以变应变的多元治理机制。