Remarks on the Normativity of International Legal Rules and Global Constitutionalism

The article reflects on the possibility of conceptualising the complex problem of the normativity of international legal rules, including in particular the phenomenon of “relative normativity.” The author utilises the critical potential of Ronald Dworkin's proposal for a new philosophy of international law to reflect on the classical accounts explaining normativity of international law. By building on Dworkin's argument, the author argues for a constitutional account of international law. The far‐reaching constitutional proposals may provide a more complex and coherent set of possible rationalisations of international legal rules. International law is in great need of a comprehensive theory that could better explain its normative character as well as its sources, and it is argued that international constitutionalism has the potential to serve this purpose.     

法官的审判理念与实践

法官在审判活动中既需要把握体现在法律规则和司法制度中的理念,又需要通过自己的理念进行事实判断和法律解释。法官之所以有智慧,并不是因为他有理性,可以掌握一些法律的原理并根据这些原理处置他们的纠纷案件,而是因为法官能依据情景的可能性并能根据这种案件的实际状况来采取措施。一名称职的职业法官不应再限于法律知识学习,他要的是用智慧去追求法律整体的逻辑一贯性和条文之间的关联性,注重对规范合理性涵义的推敲与综合操作,留心于确认法条背后的共同原则和指导原理。     

决议行为效力规则之构造

社团决议行为并非法律行为,无法直接适用法律行为规则.物权法、公司法虽设有特别规则,但二者关于决议行为效力类型及瑕疵事由的规定均不周延且相互冲突,无法满足司法需求.非公司法人等的决议行为更面临法律规制漏洞.未来民法典总则亟需增设决议行为规则.规制决议行为的伦理基础并非程序正义,而系社团自治,应围绕社团自治建构规则.应区分决议成立认定与效力判断,经有召集权者召集会议作出多数决,方形成决议.已成立的决议需满足有决议权限、真实性、合法性、合理性要件,方具有法律效力.与之对应,无决议权限、程序瑕疵、表决瑕疵、内容违法、违反规约及侵害成员合法权益将导致决议效力待定、可撤销或无效.     

On the unification of legal rules in the European Union

Unification of legal rules in Europe is not a new phenomenon. However, nowadays, Europe is still an area with many different jurisdictions. This paper studies the process of unification of legal rules in the European Union within a non-cooperative game-theoretical framework. This paper contributes to the understanding of the process by concentrating on the role of the European Commission. In the law-and-economics literature, it is argued that national legal rules will converge more or less spontaneously through the works of legislators and judges. But legal convergence in the European Union is not inevitable: preferences toward legal rules differ across nation-states; substituting a legal system for another one is costly; a coordination problem may arise. We first study the interactions of two nation-states who choose non-cooperatively their legal rules. We shall argue that the action of the Commission is, at first sight, likely to eliminate the coordination problem (under certain conditions). Two factors are at work. First, the Commission has a certain expertise which enables it to propose new and perhaps more efficient rules (so that the choice of unification does not reduce to select a particular nation-state legal system). Second, the Commission may use a system of fines that induces nation-states to abide by its rules (once these rules are adopted by nation-states). Next, we refine our first model: the process of legal unification is viewed as a game where nation-states choose the game that they will play. They choose if they will try to reach an agreement without resorting to the actions of the Commission, or if they will play the game implicitely proposed by the Commission. This captures more precisely the action of the Commission, its ‘right of initiative’’, the publication of proposals in ‘green’’ or ‘white papers’’. In this second model, a coordination problem may arise. JEL Classification C72 · K00     

Bright‐Line Fever: Simple Legal Rules and Complex Property Customs among the Fataluku of East Timor

Recent law and economics scholarship has revived a debate on bright‐line rules in property theory. Economic analysis asserts a baseline preference for bright‐line property rules because of the information costs if “all the world” had to understand a range of permitted uses, or deal with multiple interest holders in a resource. A baseline preference for bright‐line rules of property arises from the cost of communicating information: all else being equal, complex rules suit smaller audiences (e.g., contracting parties) and simple rules suit large audiences (e.g., property transactors, violators, and enforcers). This article explores the circumstances in which a simple rule, purportedly for a large audience, takes on interpretive complexity as it traverses specialized audience segments. The argument draws on two heuristic strands of recent sociolegal scholarship: systems theory notions of autopoiesis, and concepts of negotiability in plural property relations. The potential for complex interpretations of simple legal rules is illustrated through a case study of the Fataluku language group in the district of Lautem, East Timor.     

国际私法中法律规避问题的再思考

法律规避行为,应指涉外民商事法律关系的当事人利用某一冲突规范,故意改变构成冲突规范连结点的事实因素,以避开本应适用的强制性法律规范,从而使另一种对其有利的法律得以适用的行为.在构成要件上,它实质上是在一个动机的驱使下两个行为的结合.并且法律规避行为不属于法律行为的范畴,其法律效力也无从谈起.目前的禁止法律规避制度由于其自身不可改良的缺陷使它无法稳定而趋向消亡.在取消禁止法律规避制度后,依托公共秩序保留制度即可使一国的法律系统维持自身的稳定.     

Integration information in the judicial field: adding versus averaging models

Abstract

In the course of a trial, the main task that every judge or juror has to face concerns the evaluation of various pieces of evidence from a variety of different sources, with the aim of integrating such data into a single, final verdict. Algebraic models have tried to explain and predict decisional paths by identifying formal, mathematical combinatory rules. The aim of the present research was to test two main integration information models, namely adding and averaging, when combining items of judicial evidence. In the first study, we investigated how the probability of guilt varied as a function of the value of the pieces of evidence and information presented, in legal and not legal professional samples. In the second study, we analysed combinatory rules with more complex and realistic experimental material. Results indicated that participants summed the values of pieces of evidence in a linear fashion when they had to provide estimates of guilt. We found evidence of an adding rule among both legal and not legal professionals as well as in simple and more complex judicial cases, thus providing even stronger support for the use and the generalization of a summative model. Theoretical and practical implications are discussed.     

空间权:一种新型的财产权利

空间权是一种新型的财产权利,空间权可以与建设用地使用权相分离,成为一项独立的物权.当土地所有权与建设用地使用权发生分离之后,并不意味着空间权完全归属于建设用地使用权的内容,土地所有权人也仍然在一定范围内享有对空间利用的权利.空间权归建设用地使用权支配的范围是有限的,建设用地使用权人只能在规定的范围内进行支配,而超出的支配范围由所有权人享有,并由所有权人进行支配.因而,对土地上下的空间,只要未予明确的,剩余权利都应归所有权人而不是使用权人享有.     

论立法法对行政法规范冲突的控制及其完善

行政法规范的冲突是困扰行政法治的一大问题 ,《立法法》的颁布施行对于控制行政法规范的冲突具有划时代的意义。然而 ,该法作为一个单一的法典在控制行政法规范冲突方面并不是万能的 ,这既是行政法结构的特殊性决定的 ,又是由《立法法》需要进一步完善的客观事实决定的。为了有效控制行政法规范的冲突 ,全面实现行政法治 ,就必须建立以《立法法》为契机的行政法规范冲突控制机制 ,该机制的基本构成有 :抽象行政行为制度化规则、行政法规范解释制度化规则、行政法适用规范化规则和冲突制裁规则等。     

不同寻常的英国司法

在三种国家权力中,司法权是最不起眼的一种,其功能和作用一般说来都不如立法权和行政权那样成效显著和引人注目。但在英国,司法权却发挥了不同寻常的巨大作用,特别是在推进法治进程方面,堪称厥功甚伟。司法不但是引领英国法治文明的火车头,而且是支撑现代英国法治大厦的顶梁柱。英国司法之所以能够独树一帜,盖因其自身具有功能强大、结构优良、发展优先三大优势。     

哈特社会规则理论的限度

哈特以社会规则理论为核心阐释法律的概念,使规则区别于习惯,并将法律视为初级规则与次级规则的结合。同时,社会规则理论也具有一定的限度,这集中表现在,根据哈特的理论,在法体系之下,作为法律规则的初级规则的成立并不以其具有社会规则这一身份为必要条件。被制定出来的法律规则能够经由通过法体系效力判准的检验而在其被真正实践之前就成立,因此,有些法律规则不是社会规则,社会规则理论不能适用于所有的法律规则。     

Integrating Europe’s PSI re-use rules - Demystifying the maze

Despite various studies evincing the huge potential locked up in public sector information (PSI), this potential is far from being fully exploited. To a large extent, this failure is caused by the immensely complex legal labyrinth surrounding PSI re-use. This complexity works in two ways: public sector bodies do not comply with the regulatory framework and re-users do not avail themselves of the legal instruments offered, resulting in unexploited economic potential. What makes the legal framework so complex is the transcending nature of PSI re-use, as it blends four areas of law - freedom of information law, ICT law, intellectual property law and competition law - that, throughout the years, have been regulated at a European, national and even at a sectoral level, but in isolation. The fundamental impact that ICT developments have on our society, subsequently also rocking the legal rules and underlying principles and axioms, makes the picture even more complicated. Taking the maximization of utility of PSI as a starting point in this article, I will anatomize each of these legal frameworks and demonstrate how they interact, culminating in a conceptual framework that may help public sector bodies and re-users, and courts where necessary, to apply and rely on the rules involved and to bring to the surface areas for policy action, both at the national and European level.     

Rules as Icons: Wittgenstein's Paradox and the Law

In this paper Section 1 distinguishes between two modes of interpreting legal rules: rehearsal and discourse, arguing that the former takes priority over the latter in law, as in many other contexts. Section 2 offers two arguments that following a legal rule in the rehearsing mode presents a riddle. The first argument develops from law, and submits that legal rules do not tell us anything, because they are tautological. The second one develops from philosophy (Wittgenstein's later works), confronting us with the paradox that incompatible courses of action may be derived from any rule. My solution presents a theory of rules as icons (Section 3 ). I use “icon” rather than “picture,” partly to avoid confusion with what is known among philosophers as “the picture theory of meaning.” Interpretation in the rehearsing mode hinges on imagination: imagining oneself in the space of reasons for action rather than reasoning oneself. In this act of imagination, we project ourselves into the rule in ways that are similar to the way we grasp the sense of paintings, music, stories, or poems. Finally (Section 4 ) I will defend the position that my view solves the puzzles in the second section, by arguing (a) that it is a better account of what Wittgenstein wrote than two competing theories (intuitionism and conventionalism), and (b) that it provides a more satisfactory account of how lawyers deal with legal rules in actual practice.     

The public interest dimension of the single market for data: Public undertakings as a model for regulating private data sharing

Data plays a crucial role for society. Accordingly, building a ‘single market for data’ by increasing the availability of public and private data ranks high on the EU policy agenda. But when advancing legal data sharing regimes, there is an inevitable need to balance public and private interests. While the European Commission continues to push for more binding rules on data sharing between private businesses, public undertakings are already covered by mandatory rules. Exploring how the law addresses their data offers valuable lessons on the reconciliation of market reasoning with the public interest. In particular, this article inquires into the recast Open Data and Public Sector Information Directive, the Data Governance Act, and different national rules which regulate access to and re-use of public undertakings' data. It identifies five striking characteristics and discusses their potential and limitations for regulating data sharing by private undertakings. The implications serve as a guidepost for advancing the wider debate on building a single market for data in the EU. Some of them are already reflected in the upcoming EU Data Act.     

让与担保需要尽快进入民法典吗?--从让与担保与我国商品房按揭关系的角度谈起

让与担保这一权利移转型担保的产生和存在有一定的现实基础,并因方便交易而为多国实务所采用,但也因其自身所具有的特点而不能纳入已有的物权担保形式.按揭是英美法中的权利移转型担保,它与大陆法系的让与担保既有相似之处又有一些不同.我国的商品房按揭担保,虽然名称译自英美法的按揭,但却是于我国商品房交易实践中成长起来的担保形式,可谓自成一体.按办理按揭时商品房的存在状态不同可以分为现楼按揭和楼花按揭.其中,现楼按揭究其性质是不动产抵押,楼花按揭在房产建成前后性质有所不同在房产建成之前是一种让与担保,在房产建成之后则是不动产抵押.所以我国实践中运行良好的商品房按揭制度并不能被让与担保所完全涵盖,仅从商品房按揭需要由法律加以规定,不能得出让与担保应当尽快进入民法典的结论.     

Putting interpretation in its place

What can a philosophical analysis of the concept of interpretation contribute to legal theory? In his recent book,Interpretation and Legal Theory, Andrei Marmor proposes a complex and ambitious analysis as groundwork for his positivist assault on “interpretive” theories of law and of language. I argue (i) that the crucial element in Marmor's analysis of interpretation is his treatment of Ludwig Wittgenstein's remarks on following rules, and (ii) that a less ambitious analysis of interpretation than Marmor's can take better advantage of those insights about rules. I explore some implications of such an analysis for the role of interpretation in legal reasoning.     

法律的社会性别分析及其意义

法律的社会性别分析是运用社会性别视角对传统的以男性为中心建构的法律进行分析评判,发现并指出法律对社会性别偏见和女性屈从地位的塑造和建构,重构充分反映男女两性特别是女性正当诉求的法律规范.这种分析研究和建构是对"男性中心主义"的法律观和方法论的必要修正,是对以男性为中心的性别不平等法律制度的一种积极变革.     

In Defense of the Practice Theory

Hart proposed that law is made possible by the practice among legal officials of observing conventional social rules, the most important being rules of recognition. This view has been dubbed the practice theory, and it has been attacked by many legal theorists. This paper argues that many criticisms of the practice theory fail because they misunderstand the nature of the organizational challenge to which rules of recognition are the solution. The challenge of constituting a legal system is essentially the challenge of constituting a group agent, and when viewed through Pettit’s account of group agency, the practice theory can easily be defended.     

An Empowerment Theory of Legal Norms*

Abstract. Traditionally legal theorists, whenever engaged in controversy, have agreed on one point: legal norms are par excellence rules which impose obligations. The author examines this assumption, which from another perspective (that of constitutional law, for instance) appears less obvious. In fact, constitutional rules are commoniy empowering norms, norms which do not create duties but powers. To this objection many theorists would reply that empowering rules are incomplete and that they are to be understood as parts of duty-creating rules. A different position from this traditional stance is that defended in Kelsen's later writings, according to which the fundamental type of norm is the empowering norm. The author discusses Kelsen's three theories on the “ideal form” or structure of the legal norm, with special attention to the third of these, the empowerment theory.     

Health care reform in Germany: patchwork change within established governance structures

Under the pressure of health care reform in the 1990s, interactions among the state, sickness funds, and providers in Germany are said to have entered a new era. We examine this new era by assessing both long-term developments connected to German statutory health insurance (SHI) and related short-term developments of the 1990s. Highly institutionalized rules and practices provide little opportunity for abandoning the historical path of two primary factors: the self-governance of SHI and a strong tradition of a semisovereign state. Some opportunities exist for introducing new ideas, rearranging priorities, softening rules, and adding new complex rules and procedures in a fairly fragmented policy-making system, perhaps even because of fragmentation. Yet reforms that depart from the status quo are severely limited by strong legal and administrative traditions and established rules of the game. These restrictions tend to reinforce state intervention, prevent the emergence of consistent and coherent visions of future health policy, and stifle policy innovation and implementation. In sum, reform measures tend to remain well within the priorities established within state and corporatist governance structures.