论中国古代的水仙文学

中国古代文学中的"水仙",大体有两种意指类型:一者为通过神话、传说衍生出来的水中之仙,一者为花卉植物意象.两者往往互相渗透,从而使得对水仙植物意象的歌咏产生了更加丰富灵动的意韵,以及浪漫清幽的艺术魅力.     

变革时代政法人的司法使命——沃伦与王胜俊能动司法哲学观比较

从社会现实出发,寻找正确的司法哲学指导司法活动,积极回应时代的司法需求,是政法人的时代司法使命。作为中关司法能动的主要倡导者,沃伦和王胜俊都主张司法应积极回应政治和变革时代的民众权利需求,高度关注弱势群体的权利保障,关注社会实质正义,注重司法结果衡平。但由于生活的政治、意识形态、文化和社会历史背景等巨大差异,二人对于能动司法的理解当然也不完全相同。     

论利息的法律管制——兼议私法中的社会化考量

从发展历史与政治经济背景来看,利息管制是一项体现私法中社会化考量的制度。本文的分析表明,其具有扶助贫弱的效果,并且未必造成经济效率的降低。在具体内容上,宜对消费信贷进行较严格的管制,对商业信贷则应采取相对宽松的态度。我国现行法的利息管制规则对保护消费者而言上限过高;对企业而言又成了无谓的负担,应及时修正。在管制方式上,各国通常都将显失公平制度作为兜底性的规范。我国虽有同样的规定,但对该制度的理解与认识仍有欠缺,以至于实践中极少应用。利息管制制度具体运行的效果,取决于信贷的弹性或管制的有效性。在传统社会,资本的流动性较弱,投资选择有限,因此利息管制可以在很大程度上发生财富转移的效果,随着社会经济的发展,尤其是公司制度的建立,投资手段日益多样,利息管制在社会保障方面的效果日益降低。这在一定程度上促成了其他替代如个人破产等制度的建立和发展。     

Judicial Epistemology of Free Speech Through Ancient Lenses

The article is the author’s endeavor to reconstruct the semiotic conflict in the transatlantic legal appraisal of hate speech (between the USA and Europe) through Ancient Greek concepts of παρρησία (parrhēsia) and ισηγορία (isēgoria). The US Supreme Court case law on the First Amendment to American Constitution is, therefore, counter-balanced vis-à-vis la jurisprudence de Strasbourg on Article 10 of the European Convention of Human Rights. The author suggests that an adequate comprehension of the contemporary constitutional concepts of the right to free speech in Western democracies is deceptive without a thorough analysis of its genealogy in the Ancient rhetorical cradle.     

论我国古代证人之作证责任

我国古代证人要履行到场、陈词和真实等义务,否则会被追摄、拷讯和问罪。这一方面确是保障了证人作证,但同时也易导致对证人的无端滋扰和恣意侵害。为此,实践中对司法官吏的这一权力又作了必要的限制。然而,这种限制还仅仅停留在对权力滥用的消极禁止上,并没有赋予证人以任何积极权利,从而无力实现对证人之有效保护,“畏证”、“避证”、“拒证”和“伪证”现象依然。对我们今天有警示和借鉴意义。     

In Offense of Usury Laws: Microfoundations of Illegal Credit Contracts

Several European countries base their anti-usury laws on the definition of interest ceilings. Underlying this approach is the identification of high interest rates with the usurious nature of the relative credit contract; hence usury is nothing more than a particularly onerous credit contract. The present paper contradicts this traditional view by presenting a general micro-founded model of credit contracts that arrives at a few conclusions, before in a static and then in a dynamic contest. Firstly, it demonstrates the specificity of the usury contract with respect to the bank contract, pointing up the particular nature of those who supply and demand usurious credit. Secondly, it demonstrates that in environmental situations with little protection of property rights and a propensity to illegality, the decision of a borrower to turn to a usurer may be efficient from the Pareto standpoint and thus not the result of a rationing equilibrium in the bank credit market, as is commonly thought. Thirdly, it deduces from this the insubstantial link between interest rate level and the usurious nature of the contract. Hence two consequences for policy: (a) it is more effective to combat usury by improving the laws and law enforcement to better protect property rights, rather than introduce rate ceilings; and (b) in any case, the usury market can be reduced but not eliminated, since it is a meeting place for particular borrowers and lenders of funds.     

中国古代城市管理法律初探

在中国古代,统治阶级非常重视对城市的管理,制定了大量的城市管理法律,其中包括城市经济、社会和市政管理法律以及城市管理机制之法律规定等.     

中国古代刑法禁约制度的历史考察

刑法禁约起源于北魏,造极于两宋,至明清而发生新变化。刑法禁约制度的调整对象和范围十分广泛。禁约条文是带有皇权干预特点的禁止性和命令性条款,与敕令格式的法律约束力相同;禁约独立于刑律之外,是与刑律并列的法律形式;禁约具有因时、因地制宜的特点,不具备常法的稳定性;禁约表现出中国古代法制诸法合体的共同特点。在刑律和敕令格式之外大量制颁刑法禁约,是法制建设适应经济社会快速变化需要的必然结果。     

Controlling Commercial Morality in Late Medieval London: The Usury Trails of 1421

This article examines evidence from a series of usury trials which took place in London in 1421, in order to draw conclusions both about the specific matters which were being dealt with in those cases, and about the way in which usury was regarded and prosecuted in early fifteenth century England. The article also relates the London cases of 1421 to the other rules about and mechanisms for prosecution of usury in fifteenth century England, most importantly the law and practice of the church. It concludes that church courts dealt with different types of usurious conduct to that shown in the 1421 London cases. The broad conclusion of the article is that the 1421 London cases show that the law against usury was by no means a dead letter outside the jurisdiction of the church in late medieval England: in London at least, it was part of a burgeoning and increasingly sophisticated commercial jurisdiction.     

Identities Through Time: An Exploration of Identity Change as a Cause of Desistance

Research examining desistance from crime (the process of decreasing offending over time) has increased over the last 20?years. However, many explanations of desistance remain somewhat exploratory. One theory in particular that is becoming more prominent includes the idea that desistance is caused by a change in identity (e.g. from deviant to pro-social). While qualitative support has been found for this proposition, prospective quantitative studies have not been conducted on this theory. This study addresses that gap by examining how pro-social identities change over time and whether these changes correspond to desistance from crime. The results of growth curve models indicate that pro-social identity increases over time and is a robust predictor of criminal behavior over the life course. These results offer support to identity theories of desistance and also provide important information for correctional programming.     

法家的法治学说以及现代借鉴意义

法家的法治学说随着秦亡而走向沉寂,但是为汉以后历代封建统治者以“阴法”的形式继承下来并揉入封建正统法律思想中支撑中华帝制长达两千余年。其中,一些合理的成分对我们现在的法治建设仍有借鉴意义。     

Smoke,Curtains and Mirrors: The Production of Race Through Time and Title Registration

This article analyses the temporal effects of title registration and their relationship to race. It traces the move away from the retrospection of pre-registry common law conveyancing and toward the dynamic, future-oriented Torrens title registration system. The Torrens system, developed in early colonial Australia, enabled the production of ‘clean’, fresh titles that were independent of their predecessors. Through a process praised by legal commentators for ‘curing’ titles of their pasts, this system produces indefeasible titles behind its distinctive ‘curtain’ and ‘mirror’, which function similarly to magicians’ smoke and mirrors by blocking particular realities from view. In the case of title registries, those realities are particular histories of and relationships with land, which will not be protected by property law and are thus made precarious. Building on interdisciplinary work which theorises time as a social tool, I argue that Torrens title registration produces a temporal order which enables land market coordination by rendering some relationships with land temporary and making others indefeasible. This ordering of relationships with land in turn has consequences for the human subjects who have those relationships, cutting futures short for some and guaranteeing permanence to others. Engaging with Renisa Mawani and other critical race theorists, I argue that the categories produced by Torrens title registration systems materialise as race.     

古今惩贪与治盗的宽严比较

考释中国古代贪赃、官盗、民盗等罪名与刑罚,审视现行刑法中的贪污、盗窃罪名与刑罚。比较古今:古严惩官贪,宽治民盗,今则严惩民盗,宽待官贪。传统的立法经验大有借鉴的意义,现行刑法极有修改的必要。     

Through the meshes of patriarchy:

This article offers an analysis of women's life and status within the peasant family of the Saguenay region (Quebec) prior to the completion of the settlement process. After a brief survey of the literature in the field, a variety of sources (including several bodies of oral data) is analyzed, offering the conclusions that: (1) it is useful to carefully distinguish between the macro-social or societal level (State, Church, capital …) and the micro-social sphere of the family and the conjugal couple; (2) the societal scale was made up of unambiguously patriarchal powers, norms, and institutions, whereas at the micro-social level, the reality was much more complex and offered a great deal of diversity; (3) societal constraints heavily influenced the conjugal relationship but not in a deterministic way. The latter remained a social area where the women, somehow, remained able to maneuver, to negotiate and to assert themselves; (4) the same can be said of the thesis that male ownership and control of the means of production necessarily entailed subordination and proletarianization of the married women; and (5) it would be fruitful to explore the idea that male domination was mostly rooted and secured not in the family but in the societal arena.     

Human Rights: Changing the Culture

The Human Rights Act 1998 is likely to come into force early year next year. It unquestionably has the potential for being one of the most fundamental constitutional enactments since the Bill of Rights over 300 years ago. While so much constitutional change in the United Kingdom has been achieved without resort to legislation, this is a deliberate part of a programme of constitutional change by legislation. The legislation has to be seen in the context of the government's wider programme of constitutional reform: the reform of the House of Lords, the promised Freedom of Information Act, devolution to Scotland, Wales, and Northern Ireland, and elected mayors. Any evaluation of a change in the way in which the constitution is perceived and imagined in the United Kingdom cannot ignore the interrelationship of these reforms. The scope of this collection of essays is, however, narrower. It is to consider what changes have brought about this particular constitutional reform and its potential for creating a 'human rights culture'.     

“自然”与“自然法”概念的古今之异——关于自然法学术史的一个初步反思

古典时代的自然法学说与近代的自然权利学说存在本质上的差异，这是由于对“自然“一词的古今理解不同导致的。古典时代的自然法是关于人本性的法则，是与形而上学不可分离的，近代以来的自然权利说是一种革命性的政治理论，与形而上学和人的本性没有必然联系。二战后对极权主义的反思导致了古典自然法的复兴。