Interpreting Intercepted Communication: A Sui Generis Translational Activity

International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique - Legal wiretapping has gained importance in law enforcement along with the development of...     

欧盟数据库特殊权利剖析（上）－由英国BHB诉William Hill案引出

１９９６年３月１１日，欧盟通过《欧洲议会和理事会关于数据库法律保护的指令９６／９／EC》１（以下简称“指令”）。该指令为电子的和非电子的数据库创设了一种特别的双重保护机制（two－tierprotectionscheme），要求各成员国以智力创作给予数据库版权保护，同时，引入一种     

Legal Reality: A Naturalist Approach to Legal Ontology

Law and Philosophy -     

A Jurilinguistic Approach in Legal Education

The purpose of this essay is to advocate for including jurilinguistics in legal education. It presents jurilinguistics as a tool for understanding law and therefore supports continuing efforts to teach it. Knowing it is not unique, this essay proposes a jurilinguistic approach that focuses on the in-between of legal translation and comparative law. The proposal outlines the importance of educating in the capabilities of teaching a particular subject in a language other than their official one. The idea is to let the Other help to understand the Self. Particularly pertinent in transnational law programs, it is a multicultural approach that not only recognizes the other, but also embraces it.     

A Legal Conventionalist Approach to Pollution

There are no moral entitlements with respect to pollution prior to legal conventions that establish them, or so I will argue. While some moral entitlements precede legal conventions, pollution is part of a category of harms against interests that stands apart in this regard. More specifically, pollution is a problematic type of harm that creates liability only under certain conditions. Human interactions lead to harm and to the invasion of others’ space regularly, and therefore we need an account of undue harm as a basis of assigning legal protections (rights) and obligations (duties) to different agents, which creates standards for holding those agents responsible for harm. Absent such positive standards with respect to pollution at the domestic or international level, it does not make sense to hold agents responsible. This fact has two fundamental implications. First, contrary to what some defenders of environmental justice argue, we cannot hold people responsible for polluting without a system of legal rights in place that assigns entitlements, protections, and obligations, and second, contrary to what opponents of environmental regulation claim, the lack of moral entitlements to pollute creates room for quite extensive legal restrictions on people’s ability to pollute for the sake of the environment and human health. Indeed the scope of those restrictions is wide and open-ended.     

"先例判决"与建立中国特色的判例制度

自“先例判决”制度在我国产生以来 ,引起了法学理论界的争议 ,作为一项司法改革的新举措 ,尽管存在诸多值得商榷和需要完善之处 ,但它对我国司法改革所起的积极作用是不能否定的。但“先例判决”毕竟不是判例法 ,如何借鉴英美法系的判例制度 ,结合我国的司法实践 ,逐步建立有中国特色的判例制度 ,是我们法学理论界应当加以重视和需要解决的问题之一     

Loosing the Dragon: Charismatic Legal Action and the Construction of the Taiping Legal Order

This article develops the notion of legal charisma by analyzing the Taiping Rebellion in mid-nineteenth-century China. The concept of legal charisma seeks to capture those normally inchoate aspects of law that transcend its institutionalized incarnations and empower its subjects to act out visions of the universal, often in anarchic and unpredictable ways. The article further suggests that such charismatic legal behavior, in spite of its anarchic qualities, provides an important means through which systems of legal authority revitalize and strengthen their hold over legal subjects. The Taiping Rebellion provides an example of both these facets of legal charisma; the rebellion drew on visions of collective empowerment inherent in a newly articulated legal code to act out a challenge to existing social institutions—even as this same code came to assert an ever-tightening grip on the lives of the Taiping population.     

Jurisdictional Conflicts: A New Approach to the Development of the Legal Professions

This paper sketches a new theoretical approach to the study of professions and uses that approach to analyze differences that have emerged between the American and English legal professions since the late nineteenth century. Earlier studies have generally emphasized professional structure and organization while ignoring work and its control. I argue that control of work is central to professional development. Since work is central and since professions compete for it, interprofessional competition is the determining fact in the history of professions. This paper analyzes the work available to the legal profession, the numbers and types of legal personnel available to do that work, and the various competitors contesting it. Studying in detail complaints of unqualified practice in England (1870–1940) and two American states (1910–50), I locate the types of contested work and the competitors involved, using these to explain important aspects of the two legal prof essions today. Throughout, a variety of theoretical concepts are developed and applied to the particular case. One striking discovery is the contrast in competitors; American lawyers & rsquo;chief competitors were corporations, while British lawyers'chief competitor was the state. I close by evaluating the strengths and weaknesses of the particular methodology here used—the study of conflicts—and suggest alternative methods using the same theoretical framework.     

宪政三章

投票箱之妙不仅在于说服人们守法 ,而且还通过这一巧妙的程序 ,将决策风险转嫁给了选民本身。民主应当被列为人类历史上最伟大的发明之一 ,而投票箱则可以称之为一种妙不可言的设计。与政治法律中的其他制度一样 ,中国的宪法也是近代舶来品。西方宪政之所以最终确立 ,宗教以及教会是我们首先看得到的因素 ,第二条便是阶级以及阶段斗争对君主权力的限制 ,社会分工以及由此带来的知识分化是约束专横权力行使的第三个因素。税收奠定宪政基础。应当由人大代表对税收以及财政事项进行细致入微的审查。     

The Transmission of Legal Precedent Across the Australian State Supreme Courts Over the Twentieth Century

This article considers several possible determinants of the transmission of legal precedent across Australian state supreme courts over the course of the twentieth century. The study finds that that the transmission of legal precedent is higher between State supreme courts that are more physically proximate and between state supreme courts in which a majority of judges in both courts are appointed by conservative governments. The study further finds that having an intermediate trial court and providing appointments to the High Court of Australia are correlated with whether a state is a source of interstate citations or a cue sender.     

About the Meaning of the Legal Aspect of Practical Semantics in Estonian Legal Order

This article is aimed at regarding, from the author’s viewpoint, one possible jurisprudential theory for rational understanding of legal order – the structuring theory of law. It is very important that cognition of a legal order should be based on the rules which could be designated as “laws of jurisprudence”. Naturally, this does not mean legislation within the concept of objective law. Rather, these laws can be referred to as certain regularities, ignorance of which would, however, either impossibly or substantially complicate the legal process of decision-making, both in law-making (as the so-called decisional function is contained in law itself¹) or the practical legal process of making decisions (the application of law). In recent years, a conception involving cooperation between linguists and jurists has emerged in the discussion of jurisprudential methodology. This constitutes an interdisciplinary approach to motivation of legal decision-making and involves, on the one hand, “practical semantics” and researchers thereof,² and on the other hand, representatives of the so-called structuring theory of law.³ In specialist literature, the structuring theory of law has also been referred to as the Müller Schoo1.⁴ The role of language and linguistic arguments in the discussion and practice of legal working methods serves as a connective principle in such interdisciplinary approach (co-operation).     

Some Remarks on the Notions of Legal Order and Legal System

Abstract
In this paper, the authors discuss some problems related to the existence and identity of legal norms and legal systems. Firstly, two criteria for identification of legal norms are analyzed: linguistic criteria and non-linguistic criteria. Secondly, the dynamics of legal systems and the distinction between legal system and legal order are examined (close to Raz's distinction between momentary legal system and legal system). Based on the logical relations of membership and inclusion, two ways of analysing the change of legal systems are suggested. Thirdly, a criterion for identification of legal orders (from Bulygin) is discussed and it is shown that this criterion does not explain adequately, on the one hand, the existence of some norms, i.e., customary norms; and, on the other, the existence of invalid norms; i.e., unconstitutional norms. The main conclusions of this paper are: (a) the concepts of legal system and legal order could not explain the existence of law in a given society; (b) the concepts of legal system and legal order could be considered models of rational normative systems.     

A Genre-based Approach to the Translation of Private Normative Texts in Legal English and Legal Spanish

This paper aims at clarifying some of the most common issues that legal translators have to face when dealing with the translation of private normative texts, such as contracts or wills, which naturally emerge as the consequence and expression of legal or juristic acts in the scope of private law, in Spanish and English. To comprehend the differences and subtleties regarding legal communication between the common law and the continental law countries (specifically the United States and Spain, respectively), we must unveil some essential clues for their translation and application in the global scope of professional interactions, thus creating a process of inter-legal communication, which takes place through the mutual interpretation and application of two, or more, legal traditions. Through the deployment of a generic or pragmatic analysis at textual or discursive and formal or superficial, strata, of two types of genre within the domain of private law (namely wills and tenancy agreements, or leases) this work aims to prove that both the civil law and the common law private instruments are translatable with respect to each other. An important proviso, however, is that their legal traditions and the genres that constitute the communicative tools of their specialised communities must be duly respected and kept in equilibrium, so that one does not overshadow and obliterate the other. Only in that way can the ??convergence?? of the two traditions truly enrich and strengthen national and international legal culture.     

传统法律文化:解读社会危害性的新路径

社会危害性是对犯罪的一种价值评判,而价值评判总是置身于一定的社会法律文化之中。因此,对社会危害性理论进行反思与改革,不能脱离传统法律文化。法律文化的相对稳定性,决定了对社会危害性不宜采取完全否定的态度。正确的做法应当是:吸收传统法律文化中的精髓,不断充实社会危害性的内涵。     

判例规则与法官职业--兼论法官判案的创造

判例规则是由法官所创造的、在判例中所蕴含的对其后的类似案件具有类似拘束力的规则和原则,它不仅是法律的重要渊源,而且在英美法系国家以之为中心构成了独特的判例法体系。判例规则之所以能够成为法律,在于司法活动的典范性、人类交往行为的可重复性和类似性。该规则具有开放、进化、不确定和借助个别正义达致普遍正义等特征。判例规则与法官职业之间形成明显互动的关系:一方面,法官职业缔造了判例规则;另一方面,判例规则完善了法官职业。     

Taxonomies of Squatting: Unlawful Occupation in a New Legal Order

Legal responses to the activity of ‘squatting’ include criminal justice, civil actions, property law and housing policy. Some legal analyses of unauthorised occupation focus on the act of squatting, others on the squatter's claim to title through adverse possession. This paper explores recent developments in the law of adverse possession which have been shaped by particular discursive constructions of both squatters and dispossessed landowners. It develops a ‘taxonomy of squatting’ by mapping the positions adopted by the Law Commission, the legislature and various domestic and European courts, in respect of moral issues thrown up by the doctrine of adverse possession, including the distinction between good faith and bad faith squatting, the landowner's duty of stewardship, and the question of compensation. By unpacking the circumstances in which squatting occurs, the paper develops a series of matrices to classify legal responses to unlawful occupation and to facilitate a more systematic and coherent understanding of law's responses to squatting.     

寻找法律秩序正当性基础--和谐社会的法律供给

法律秩序的正当性关涉人们对法律的态度、法治建设与和谐社会建设的进程,也是关涉人们生活状态和生活方式的根本性问题.我们要建设社会主义法治国家、进行"可持续发展"的经济建设、构建和谐的社会环境就必须要有具备充足正当性的良好的法律秩序.法律秩序的正当性要从规则正当性、结构正当性和价值正当性中寻得.