Law Sidelined

This article discusses how the rule of law is understood in present-day Russia, highlighting the distinction between rule of law and rule by law. It highlights how both international and Russian legal norms were subverted in the Russian Constitutional Court's ruling on the legitimacy of the treaty that authorized Russia's annexation of Crimea.

On the question of the rule of law in the context of Russian foreign policy, or why, according to the law of the Russian Federation, Crimea is nonetheless not altogether ours.     

Soft Law in the European Union—The Changing Nature of EU Law

This article is based on the assumption that there is a continuum running from non‐legal positions to legally binding and judicially controlled commitments with, in between these two opposite types of norms, commitments that can be described as soft law. It aims at defining soft law in international relations in order to provide a mapping of EU law on the basis of the soft law/hard law divide. It helps categorise EU competences and public policies, and sees how they fit with the distinction between two kinds of processes: legalisation (transformation of non‐legal norms into soft or hard law) and delegalisation (transformation of hard law norms into soft law and evolution from hard to soft law).     

Improving the Non-Governmental System of Outsourcing Labour Regulation in China

Abstract:  This article examines, from a legal point of view, the working and functioning of the non-governmental system of outsourcing labour regulation in China. This examination is conducted from two angles. First, by adopting the analytical tool of contemporary international law, in particular human rights law, it is found that generally the outsourcing regulation system possesses its full legitimacy and special value in realising business entities' responsibilities to respect, protect, fulfil and promote labours' fundamental rights and interests. The international community has also set some minimum legal requirements in this regard. Second, reviewed in the context of domestic law and policy, this article identifies that many legal questions arising from the outsourcing of labour regulation in China have been neglected by either the governmental or the non-governmental labour regulation system. Some representative legal issues are illustrated. It is argued that the underlying causes are three pairs of controversies, i.e. the controversy between the ideal standardised model norms vis-à-vis the realistic specified local societal concerns; the controversy between the voluntary nature of the non-governmental norms vis-à-vis the necessity for official authorities' legal guidance and enforcement; and the controversy between the internal interests of the international production chain vis-à-vis the external interests of outer stakeholders. Finally, this article concludes that, on the one hand, the foreign buyer companies and the international non-governmental organisations must not neglect the particular societal concerns and demands in China, and, on the other hand, the Chinese public authorities should promote and direct the development of the non-governmental labour regulation by improving the governance of rule of law as well as policy making and implementation. Some tentative proposals are raised for solution.     

The Possibility of Interimperial Law

This article identifies the contemporary criteria of imperiality and then considers the normative aspects of the existence of certain great powers (empires) in international relations. It is argued that there is a body of norms valid among empires that may be referred to as interimperial law, in the sense of a normative order that is intended to lower the costs and dangers of competition between empires. The article outlines a basic theory of coexistence between the emerging interimperial law and the existing international law, derived from theoretical and historical models of the coexistence of various legal orders within one territory.     

The Valuation of Ecosystem Services in International Investment Arbitration

Abstract

Ecosystem services are essential to human life, inextricably woven into the foundations of our civilizations and economies. This article lays the theoretical foundation for the incorporation of ecosystem services valuation into international arbitration, applying the scientific and economic scholarship in this area to legal dispute resolution. Traditional international investment law and modern legal scholarship fail to address either the value ecosystem services bring to landowners or the repercussions of investor activity on their fragile health and vitality. The evolution of international dispute resolution and growing threats to the natural environment urge the development of a new perspective that closes these gaps. Investor-state dispute settlement is a flexible enforcement framework used by thousands of international investment agreements. It provides an ideal forum for inaugurating the internalization of the positive externalities generated by these precious resources. Recognizing the economic and environmental importance of these services and their impact on legal relationships, this article unfolds a legal basis for incorporating the valuation of ecosystem services into damages calculations in international investment arbitration awards.     

Negligence and Human Rights Law: The Case for Separate Development

A number of judges and academics have argued in favour of the convergence of negligence law with human rights law. By contrast, the thesis of this article is that the two legal orders should develop independently, so that for the most part the law of negligence ought not to be affected by human rights considerations. It is argued that the case for convergence is based on two false assumptions, namely that human rights law and negligence law perform similar functions within our legal order and that the norms of human rights law are more fundamental than the norms encapsulated in negligence law. It is also argued that convergence would undermine the coherence of negligence law. Ultimately, the case for separate development rests on the desirability of recognising public law and private law as autonomous normative systems with their own distinctive rationales, concepts and core principles.     

The place of law in a business studies curriculum

Abstract

LEGAL ETHICS are the values that inform the practice of law. This article establishes what and how Australian law schools teach about legal ethics and suggests what and how Australian law schools should teach about legal ethics.

First, the article establishes that Australian law schools tend to teach legal ethics as if it were only concerned with the law of lawyering. It also establishes that Australian law schools tend to teach legal ethics discretely over the course of one subject out of the whole undergraduate curriculum.

Secondly, this article suggests the adoption of a new approach to legal ethics as the ability to exercise legal ethical judgment. It also suggests a pervasive method of instruction that integrates issues of legal ethics and the process of legal ethical judgment into every subject in the undergraduate curriculum in combination with discrete subjects on the context and substance of the law of lawyering.     

Thoughts on the theories and practice of chinese private international law

“The parties can only choose facultative legal norms,” “the parties of all foreign-related civil and commercial cases may agree to choose Chinese law as the applicable law governing their legal relationship,” and “the applicable law to the contract chosen by the parties shall not avoid the mandatory provisions of Chinese law” —such viewpoints that have substantial influence among the theorists and in the judicial practices of Chinese private international law are actually based on misunderstandings of Chinese private international law. It is a task of the private international law community of China to eliminate such misunderstandings, hence facilitating the healthy development of Chinese private international law.     

国际环境损害责任的私法化

在国际环境损害问题上追究国家责任的不可行性 ,使国际环境损害责任制度呈现出越来越明显的私法化趋势已多年。但是 ,由于国际法学界在相当长的时期内囿于传统的法律模式和思维方法 ,对这一问题的法律阐释和编纂始终没有取得突破性进展。直到最近 ,联合国国际法委员会的报告才突破了这一问题。从理论上对国际环境损害责任私法化的内容和法学方法论问题进行系统的分析、探讨 ,对发展国际环境法具有重要意义。     

两种经济法概念的分析与思辨

经济法概念是经济法基础理论的核心和关键。两种经济法概念———作为法律部门的经济法与作为制定法的经济法———存在着微妙而重要的区别。前者是同类法律规范的总称,在性质上应定位于“经济行政法”;后者具有法律规范构成上的异质性,不但在分类标准上不同于前者,而且在内容上与部门法意义上的经济法形成较大出入。作为部门法的经济法的建构在思维方式上体现和反映了大陆法系的特点,作为制定法的经济法则反映了英美法系的思维方式。     

The limits and benefits of international mobility: an empirical examination of the biographies of Australian legal academics

ABSTRACT

Academics are becoming increasingly internationally mobile, and yet there is still limited research into the nature, outcomes and limits of academic mobility. This paper examines the biographies of over 700 academics employed within Australian law schools. It identifies legal academics who hold academics qualifications have been employed outside of Australia. Almost a quarter of legal academics in our sample hold a first degree outside of Australia, over a third hold a non-Australian post-graduate degree. While it could be expected that possessing international experience would broaden an academic’s cultural experiences, we also found that the internationally mobile academics have typically studied and worked previously within an elite international law school, and are now employed within an elite Australian law school. In addition, experiences of international mobility are not equally distributed, and male legal academics are significantly more likely to have international experience than female legal academics.     

Sources,Recognition and the Unity of the Legal System

A critical analysis of Kelsen’s theory leads to a broad concept of custom, which covers diverse types of customary norms, where the always required conviction of legal bindingness depends on different types of factual and normative reasons. In it we should include a strict concept of custom or legal usage, derogating custom, custom of general international law, custom that establishes an unwritten constitution, custom that establishes a new written constitution, judicial custom which creates a rule of precedent and custom newly expressed in the judicial application of customary rules. The basic norm could be formulated as a constitutive norm: ‘If the norms created through the first historical constitution are effective, then the first historical constitution (and all the norms derived from it) are valid.’ It is thus a customary constitutive rule that recognizes the first historical constitution as valid law. Norms which establish sources of law are constitutive rules, they can be customary norms or legislated norms, but if they are legislated, they have their validity recognized by, directly or indirectly, a constitutive customary norm. By using a broad concept of custom as a conventional practice, Hart implies that general recognition of a customary rule, together with the practice that accompanies it, are sufficient conditions of validity. A doctrine of recognition that is arrived at by means of criticism and a rational reconstruction of the doctrines of Kelsen and Hart regains the essential theses of the traditional recognition theory of Bierling and Engisch.

     

A Fine Line Between Pleasure and Pain: Would Decriminalising BDSM Permit Nonconsensual Abuse?

The increasing social visibility of Bondage/Domination, Discipline/submission and Sadism/Masochism (BDSM) within Western society has placed pressure on the criminal law to account for why consensual BDSM activities continue to be criminalised where they involve the infliction of even minor injuries on participants. With moralistic and paternalistic justifications for criminalisation falling out of favour, one key justification that is gaining traction within international commentary on BDSM is the “bogus BDSM argument”. The bogus BDSM argument contends that BDSM activities should be criminalised because otherwise false claims of BDSM will be used by defendants to excuse or minimise their criminal liability for nonconsensual abuse. This article refutes this argument by showing how it relies on premises that are unjustifiable, illogical and irrelevant. This article concludes that the decriminalisation of BDSM would not permit nonconsensual abuse so long as legal officials were equipped with sufficient knowledge about the norms and conventions of BDSM culture.

     

Constructing International Crime: Lawyers,States, and the Origin of International Criminal Prosecution in the Interwar Period

This article explains the development of international crime as a legal category. I argue that states’ pursuit of political rights claims empowers international lawyers to develop new legal categories to grant states new tools to pursue their interests. At the same time, lawyers have a stake in defending the autonomy of law from politics, thus pushing for the development of legal norms and institutions that go beyond the original state intent. States’ turn to law thus begets more law, expanding the legal and institutional tools to solve international problems while simultaneously enforcing a commitment to principles of legality. To demonstrate the plausibility of the theory, the article studies the construction of the concept of an international crime in the interwar period (1919–1939). In response to the Allies’ attempt to prosecute the German Emperor, international lawyers sought the codification of international criminal law and drafted enforcement mechanisms. The interwar legal debate not only introduced international crime into the legal and political vocabulary, it also legitimized a new set of institutional responses to violations of international law, namely, international criminal prosecution.     

Academic perspectives on teaching international family law in higher education institutions in England and Wales

ABSTRACT

The increasing prevalence of family law disputes in England and Wales with an international element is well documented in the development of domestic legislation, case law and family practice. However, despite changes to the legal landscape and the academic recognition of international family law as a legal subject, it is still often disregarded within the undergraduate family law curriculum or as a standalone module. This article explores the development of international family law in England and Wales and presents the findings of a national questionnaire into whether international family law is taught as part of the undergraduate curriculum. The article also explores what barriers exist to including international family law topics. To conclude, the author offers some general advice about incorporating these topics into the curriculum to ensure that students are equipped to deal with the realities of family practice in England and Wales.     

法理学的定义与意义

法理学是一个运用哲学方法研究法律基本问题的学术门类 ,与法律哲学或法哲学含义相同 ,都是探讨法律的一般性问题的学科。与其他法学门类相比较 ,法理学的对象超越了实在法规范 ,甚至更多地以相关法律思想和学说为研究的直接对象 ,从中获得思考现实法律问题的精神养料 ,目的是建构和探索法律的理论问题。因此 ,法理学的意义主要在于开启心智、启蒙思想 ,提高法律职业者的理论思维能力。     

Status of Forces and Criminal Jurisdiction

This article examines the legal status of armed forces present in friendly foreign territory with a special focus on criminal jurisdiction. Traditionally, this issue has been considered from the perspective of public international law in which immunities play an important role. However, this perspective does not fully cover the criminal jurisdiction provisions in the international agreements dealing with the status of visiting forces (Status of Forces Agreements). This article introduces military operational law as an additional perspective to better understand this specifc approach of Status of Forces Agreements.

     

缘何不是法律方法——原本法学的探源

中国法学界对在汉语中到底是使用“法学方法”还是“法律方法”存在着争议。之所以会产生这种争议是因为人们对德国法学中“法学方法论”一词中的“法学”的蕴涵不太清楚。德语的“法学方法论”中的“法学”有特定的内涵和意义,而不是中国法学界所普遍理解的法学。前者是由西方法律文明的创造者——古罗马人所创立的一门独立的科学或实践智慧,是西方两千多年法律文明中绵延不绝的伟大传统。这种传统意义的法学称为原本法学。相对于原本法学来说,现在所谓的其他法学学科如法社会学、法经济学、法史学、甚至法哲学,都是一种交叉或边缘学科。在这种意义下,在汉语中还是使用“法学方法”一词较为合理。     

Foreign Occupation and International Territorial Administration: The Challenges of Convergence

International organizations have increasingly joined statesas occupiers of territory. Yet international law doctrine andpolicymakers have regarded occupation by states and administrationby international organizations as distinct legal and politicalphenomena. The stigma associated with state occupation has translatedinto an assumption that the two operations are governed by differentnorms and their tactics for asserting control subject to differentstandards of legitimacy. This article rejects that dichotomyand the doctrinal parsing that comes with it. It emphasizesthe common traits and challenges of these occupations and arguesfor a joint legal and political appraisal. From the legal perspective,the two sorts of missions operate under common legal frameworks;those managing both need to find the proper balance among internationalhumanitarian law, international human rights law, local law,and any mandate from an international organization. As a politicalmatter, each encounters resistance from those in the territoryopposed to its presence, leading to coercive responses whoselegitimacy will be questioned from within and outside the territory.The article concludes with some modest thoughts on how eachsort of occupier might learn something from the other.