Styles of Delivery of Legal Services to the Poor: A Review Article

This article was stimulated by the publication of Toward Equal Justice: A Comparative Study of Legal Aid in Modern Societies, edited by Mauro Cappelletti, James Gordley, and Earl Johnson, Jr. (Dobbs Ferry, N.Y.: Oceana Publications, Inc., 1975), a recent and ambitious entry in the debate over alternative methods of delivering legal services to the poor. Brakel, the author of several publications in the field, feels that the portion written by Johnson, presenting the operational and research experience with legal services for the poor in this country, is one-sided and unsatisfactory and maintains that, through the process of critically examining the Johnson portion, it is possible to present a more balanced picture of the legal aid experience in the United States. This is important for the domestic audience as well as for the international readers whom the book seeks to address.     

Why Methods Matter in European Legal Scholarship

Both in the United States and in Europe, there is a debate on methodology in legal research. Doctrinalists and multidisciplinarians appear to be in different camps fighting over the ‘true nature’ of legal scholarship. We wonder where this renewed attention for methodology is coming from and what is behind it. Should European legal scholars follow certain colleagues in the United States who believe that doctrinal research is dead and should we all engage in law and … research now? If not, does this imply that there is nothing wrong with mainstream European doctrinal legal scholarship? We believe the latter is not the case. Our hypothesis is that an ongoing instrumentalisation of law and legal research decreases the attention for methodology, for theory building, and for keeping enough professional distance to one's object of research. This threatens to result in a creeping process of herd behaviour, in copy pasting the methodology of judicial lawmaking to legal scholarship and in a lack of transparency and methodological justification in scholarly legal publications. What is desperately needed is more reflection on methodology and theory building in European legal scholarship.     

刍论民间法对法律方法的可能贡献

民间法与国家法的张力由来已久,其紧张关系体现并爆发于法官的办案过程中。作为认识论的民间法依赖并附着于法律方法而生,又为法律方法之鲜活提供养分;而作为方法论的民间法则与法律方法同为方法论,在法学研究方法的博弈中,构成对立统一和互补关系。本文试图从民间法作为国家法之外实存并运行于中国当下社会的规范或秩序的认识出发,探讨民间法与法律方法间的辩证关系,为在司法过程中实现民间法与国家法的有效融合和互动,实现法治原则下和谐社会的宏伟目标,提出有关民间法对司法过程中法律方法的可能性贡献的些许思考。     

Consolidation of the Field: a Review Article

When a particular research field experiences the sudden and simultaneous appearance of several encyclopaedic and anthological works, this might be taken as a sign of consolidation. This article tests the hypothesis of consolidation on occasion of the appearance of several new anthologies and an encyclopaedia.     

The Continuing Relevance of Ars Poetica to Legal Scholarship and the Modern Lawyer

In this late modern era within which the basic values of life have been reordered (driven by globalisation, the corporate agenda and mass communication technologies), the individual has effectively been reduced to a mere abstraction. It might be argued that the rational, moral and humanistic concept of freedom has, to a great extent, been compromised by a consequent crisis within the intelligentsia. These groups, in particular the gatekeepers of a classical liberal approach to legal scholarship, are caught between the twin evils of increased unreflective populism and pragmatism evident within many law schools and modern legal institutions. Although a contested term, defenders of the ‘socio-legal’ tradition, who place the humanities at the heart of legal research and education, are obliged to restate with increased determination the utility of the liberal arts and literature to the law profession and wider legal community. In a normative environment, law and narrative are inextricably linked and narrative poetry is not only invaluable to explaining the origins and location of the legal tradition, but also elicits a mode of understanding which transcends the boundaries of narrowlydefined legal hermeneutics—which often only addresses issues of an operational nature. French novelist Flaubert claimed “chaque notaire porte en soi les débris d’un poète” (Flaubert in Madame bovary (trans: Wall, G.), Penguin Classics, London, 1960: 269), paraphrased by American civil rights lawyer, Clarence Darrow, as “inside every lawyer is the wreck of a poet” (Lukas in Big trouble: a murder in a small western town sets off a struggle for the soul of America, Simon & Schuster, New York, 1997: 323). In an age of disenchantment, this paper explores the poetic form as an important medium within which to understand the nature and function of law in a society of differentiated individuals.     

Legal Scholarship at the Threshold of a New Millennium

Scholarship has already warned us to soundness in relation to modernisationist legal reforms. For it consistently (1) emphasised the framework-creating nature of the otherwise prevailing social normativity, and its primordial role in determining social processes, (2) put the possibility and demand of organicity with every step in the limelight, (3) did not consider the effectiveness of initiating elitist actions to influence overall social movements plannable for the long run and with lasting effects. Therefore, it regarded any regulatory legal intervention as the primarily symbolic confirmation with sanctioning of the direction otherwise ongoing movements were taking, (4) warned to the damages caused by any adventurer policy in as much as they not only fail, but discredit even the thought of change itself. Therefore, it (5) gave voice to the advantage of a systematically planned, consistent, convincing, pragmatic, and all-comprehensive social programme, as opposed to the occasional temptations of worldcuring intentions, exposed to the alternate danger of sudden forwarding and quick tiring, supported solely by intellectual arguments.     

关于《劳动合同法》第14条的溯及力的法理分析

《劳动合同法》第14条引起了广泛争议并产生了很大社会影响,争议的焦点是有关年限的规定是否具有溯及力的问题。依据法不溯及既往原则,《劳动合同法》原则上不具有溯及力,但由于《劳动合同法》的立法意图旨在保护劳工利益,加之《劳动合同法》吸收了《劳动法》的有关规定,因而使某些有关年限的起点具有溯及力。这样把握既不违反法不溯及既往原则,同时也保护了劳工的正当权益。不过应该有个过渡办法,《劳动合同法》实施前企业对劳工的福利欠债可以考虑由政府"埋单"而不能完全推给企业。     

Narratives of Force: The Presence of the Writer in International Legal Scholarship

Netherlands International Law Review - In this article I use the notion of ‘plot’ to uncover where in their texts international legal scholars are ‘present’, directing...     

爱德华·柯克爵士与英国法学近代化

在法学近代化之初,17世纪的英国面临着全面继受罗马法学与继承普通法学两条道路的选择.柯克爵士明确提出了"老田生新谷"的主张,在中世纪的<年鉴>与<论土地保有>等作品的基础上,撰写了<柯克报告>与<英国法总论>.在"法学观"、"部门法学"与"法学形态"等方面,这两部作品均呈现出了诸多近代性的"萌芽",从而开启了英国法学近代化的历程,并且在事实上开创了不同于欧陆法学近代化的"另一条道路".