The Declaration of War in the Dutch Constitution and Models of Legal Communication

Models of communication,frequently used in legal semiotics, offer ananalytic framework for the relationship betweenlegal rules on the one hand and correspondingsocial behaviour on the other. Semiotic modelsseek to clarify (un)successful legalcommunication; they try to reveal the processesof interpretation and sense construction. Inthis paper, these processes are described,taking Article 96 of the Dutch Constitution asan example. Although the text of Article 96 hasremained nearly unchanged, its substantivemeaning has changed fundamentally. Thebackground and development of the `declarationof war', as laid down in Article 96, areanalysed and fully elaborated. It is concludedthat the classical models of communication,largely based upon the idea of the existence ofa linear relationship between rule and conduct,hardly correspond with the complex processes asdescribed in the analysis of Article96 Communication between rule and practice isobviously more than a one-waycausality, in which rule information `flows'from sender (legislator) to receiver (citizen).The institutional model of communication,developed by Ruiter, offers a different approach.The institutional model is based on the notionof law as `institutional landscaping';realisation depends on common beliefs andgeneral acceptance. The influence of the socialpractice on the meaning of legal rules becomesan important factor. The institutional theoryseems to offer a more adequate model for thecomplex reality of legal communication.     

A New Conceptual Framework for Analysing a Case Study on ICT and the Sanctity of the Home

The case study shows the complex reality with respect to processes of meaning construction. Ruiters framework provides a more sophisticated instrument to analyse these complex processes. Unlike the classic models of legal communication, based upon a linear causality between norm and action, and unlike the dual model of interplay between legal institutions and institutional legal facts developed by MacCormick and Weinbergers Institutional Legal Theory (ILT), the tripartite model of interplay between rule, application, and social practices, stemming from Ruiters analysis of ILT, can contribute to a more refined model of legal communication.     

Trial Argumentation: The Creation of Meaning

My purpose is to analyze lawyers creating meaning in three well-known cases in Anglo-American legal history: Commonwealth v. Woodward (1997) the famous Boston ‘nanny’ case, the O.J. Simpson Murder Trial (1995), and the John Peter Zenger Libel Case in Colonial New York (1734). In each case, creative lawyers were able to shift the question before the jury from the formal legal question—did Woodward and Simpson commit murder? Did Zenger publish libelous material?—to issues of vengeance and catharsis, and of the ability of the legal system to represent the community’s sense of justice.     

On War,Peace and Armed Conflicts

In general, the relationship between rule and conduct is dominated by the concept of linear causality: the legal rule causes effect in social practice. The case study on Article 96 of the Dutch Constitution (democratic procedures for the war declaration) and Article 102 of the Dutch Penal Code (the offence: aiding the enemy in war time) makes clear that this concept is too simplistic for the complex processes that took place. The clear dividing point between war and peace — i.e., the war declaration that initiates the legal state of war — no longer exists, since a third category —'armed conflicts' — that was 'constituted' in social practice and is positioned 'somewhere' between peace and war. Exact demarcation for this category is problematic. This phenomenon has far-reaching consequences for the meaning of the Articles, mentioned above.     

The Distance Selling Directive: Points for Future Revision

The EU Distance Selling Directive that was implemented in UK law in the Consumer Protection (Distance Selling) Regulations 2000 has provided guidelines for the protection of consumers undertaking distance transactions. The following paper discusses the provisions of the Directive with particular reference to e-commerce via the Internet, highlighting some possible areas for further consideration. Articles within the Distance Selling Directive are examined for problems of legal interpretation and implementation. There is discussion of: Article 2 (Definitions) and difficulties with its fundamental concepts of 'supplier' and 'consumer'; unnecessary exemptions in Article 3 (Exemptions); the 'local taxes' headache (and others) in Article 4 (Prior Information) and using e-mail under Article 5 (Written Confirmation of Contract). Under Article 6 (Right of Withdrawal), the 'cooling off period', exempted goods and services, refunds and reclaiming goods, and for Article 7 (Performance) substitute goods and contract law implications, are investigated. Finally Article 8 (Payment by Card) looks at protection against fraudulent card use.     

Redefining Apartheid in International Criminal Law

This article asks: to what extent is Article 7(1)(j) of the Rome Statute—the crime of apartheid—a tenable crime in international criminal law? It will be argued that despite the obligations incumbent on states not to intentionally discriminate against social groups, there is no customary legal norm of apartheid as a distinct crime against humanity. This is premised on the distinction between state obligations as different from norms demanding individual liability in international criminal law, as well as inadequacies of the International Convention on the Suppression and Punishment of the Crime of Apartheid (1973) and the absence of case law relying on apartheid as a crime against humanity. Further, the weaknesses hindering the formation of a customary norm of apartheid as a distinct crime against humanity will be assessed with regard to the Rome Statute. Also it will be shown that the lack of coherence of Article 7(1)(j) demonstrates that the crime of apartheid is subsumed by the crime of persecution. Finally, two suggestions are offered on how the crime of apartheid could be established as a distinct offence in international criminal law. The central thesis of this paper is that the crime of apartheid is ambiguous and inoperable. In order for Article 7(1)(j) to be relevant in international criminal law, the offence must be reworked and clearly articulated.     

A peculiar institution? Greco–Roman monogamy in global context

In what sense were the ancient Greeks and Romans monogamous, and why does it matter? This paper addresses this question from a transdisciplinary and global cross-cultural perspective. It considers the physical and anthropological record of polygyny, delineates the historical expansion of formal monogamy, and critiques complementary social science models of mate choice. This approach allows us to situate Greco–Roman practice on a spectrum from traditional polygamy to more recent forms of normative monogyny. Whilst Greco–Roman legal and social norms stressed the nexus between monogamous unions and legitimate reproduction, they accommodated a variety of men's polygynous relationships outside the nuclear family. Greco–Roman monogamy's historically most significant consequence was its role in shaping Christian and later ‘Western’ marital norms that eventually gained global influence.     

A peculiar institution? Greco–Roman monogamy in global context

In what sense were the ancient Greeks and Romans monogamous, and why does it matter? This paper addresses this question from a transdisciplinary and global cross-cultural perspective. It considers the physical and anthropological record of polygyny, delineates the historical expansion of formal monogamy, and critiques complementary social science models of mate choice. This approach allows us to situate Greco–Roman practice on a spectrum from traditional polygamy to more recent forms of normative monogyny. Whilst Greco–Roman legal and social norms stressed the nexus between monogamous unions and legitimate reproduction, they accommodated a variety of men's polygynous relationships outside the nuclear family. Greco–Roman monogamy's historically most significant consequence was its role in shaping Christian and later ‘Western’ marital norms that eventually gained global influence.     

Explaining the process of change taking place in legal rules and social norms: The cases of institutional economics and new institutional economics

This paper deals with the phenomenon of institutional change and has been conceived as an attempt to answer the following question: Can we retain theimage of institutional change contained in a theory when we replace a methodological foundation on which the theory was built by a different and alternative one? For an answer to be developed, special attention is paid to the contributions made by institutional economists (IE) and those made by transaction cost—new institutional economists (NIE). The question clearly shows that it is a paper on applied methodology rather than a survey on institutional change contributions. Because of that, its main purpose is not to increase our knowledge about the characteristics of real changes in legal rules and social norms, their causes, their processes, or their effects, though several examples are given of those institutionalist and new institutionalist contributions that analyze those changes. Our purpose is to investigate the way in which these two groups of economists approach the object of analysis already mentioned. Our conclusion will be that institutionalist and new institutionalist contributions are built on two different and mutually exclusive approaches because their respective methods of analysis (holism versus methodological individualism) are different and, above all, because they build their respective analyses on some concepts that are mutually exclusive (concepts showing power or nonvoluntary influences versus concepts showing voluntary transactions). Their analyses contain different and mutually exclusiveimages of the changes taking place in legal rules-formal institutions and social norms-informal institutions. Some comments about the limitations of the holist method of analysis are made in the paper.     

作为债之独立类型的法定补偿义务

在公法和社会法领域内,法定补偿义务作为债的独立类型由来已久。但就法定补偿义务可否作为私法上独立类型之债,与合同之债、侵权之债、不当得利之债、无因管理之债等并身而立,民法学界远未达成共识。若从解释论角度出发进行分析,侵权责任法若干条款规定的补偿义务、"分担损失"规则以及"有财产的无民事行为能力人、限制民事行为能力人造成他人损害的,从本人财产中支付赔偿费用"等,都属有关法定补偿义务的规定。它们与民法通则及最高人民法院相关司法解释确认的法定补偿义务一起,构成我国民法中独立类型之债。在我国的责任保险制度尚不发达,社会保障制度还远未健全的背景下,如果法定补偿义务制度运用得当,无疑可在一定程度上济侵权损害赔偿责任制度之穷。     

Towards a Hierarchy of Legal Acts in the European Union? Simplification of Legal Instruments and Procedures

Abstract A remarkable feature of the Union's legal order is the absence of a genuine hierarchy of legal acts—a pre‐established ranking of different types of legal acts in accordance with the democratic legitimacy of their respective authors and adoption procedures, which is used as a means to resolve conflicts among these different types of legal acts. There is however a clear suggestion of such hierarchy in the sequence in which the newly created legal instruments are listed in Article I‐33(1) and in the organisation of the subsequent Articles I‐34 to I‐37 of the European Constitution. In this contribution, the (lost) logic behind the Union's current set of legal instruments is analysed, followed by an examination of the reform of the system of legal instruments carried out in the European Constitution. Lastly, an attempt is made to answer the question as to whether this reform amounts to the establishment of a genuine hierarchy of legal acts in the Union.     

Undocumented consciousness: Citizenship and illegality in the lives of US citizen youth

This paper examines the impact of immigration law on US citizens' understanding of legal status categories. Prior research on legal consciousness has uncovered the ways in which undocumented persons make sense of and navigate their legal position in society. Less is known, however, about the paradox of US citizen children who are legally protected by their citizenship yet grow up in the context of their parents' precarious immigration statuses. Drawing on interviews with US citizen youth and undocumented parents, I conceptualize the phenomenon of undocumented consciousness to explain how US citizens make sense of parental legal status vulnerability. By witnessing their parents' blocked opportunities from work, travel, and other aspects of life, youth begin to attach meaning to citizenship and its protections, all the while forming an understanding of what it means, practically, to live in the United States with and without legal status. Findings reveal the mechanisms by which it is possible for functions of immigration law to have adverse impacts on the lives of US citizens themselves.     

Pammer and Hotel Alpenhof - ECJ decision creates further uncertainty about when e-businesses “direct activities” to a consumer’s state under the Brussels I Regulation

The European Court of Justice’s recent judgement in the joined cases C-585/08 and C-144/09 will have substantial long-term implications for European e-businesses and e-consumers trading across borders.The key question considered was whether the fact that a website can be consulted on the Internet in the Member State of the consumer’s domicile is sufficient to justify a finding that commercial or professional activities are being directed to that Member State within the meaning of Article 15(1)(c) of the Brussels I Regulation.     

From porn to cybersecurity passing by copyright: How mass surveillance technologies are gaining legitimacy … The case of deep packet inspection technologies

Recent coverage in the press regarding large-scale passive pervasive network monitoring by various state and government agencies has increased interest in both the legal and technical issues surrounding such operations. The monitoring may take the form of which systems (and thus potentially which people) are communicating with which other systems, commonly referred to as the metadata for a communication, or it may go further and look into the content of the traffic being exchanged over the network. In particular the monitoring may rely upon the implementation of Deep Packet Inspection (DPI) technologies. These technologies are able to make anything that happens on a network visible and recordable. While in practice the sheer volume of traffic passing through a DPI system may make it impractical to record all network data, if the system systematically records certain types of traffic, or looks for specific patterns in all traffic, the privacy concerns are highly significant. The aim of this paper is twofold: first, to show that despite the increasing public awareness in relation to the capabilities of Internet service providers (ISPs), a cross-field and comparative examination shows that DPI technologies are in fact progressively gaining legal legitimacy; second to stress the need to rethink the relationship between data protection law and the right to private life, as enshrined in Article 8 of the European Convention on human rights and Article 7 of the European Charter of fundamental rights, in order to adequately confine DPI practices. As a result, it will also appear that the principle of technical neutrality underlying ISP's liability exemptions is misleading.     

Discursive Ethics as Constitutional Theory. Neglecting the Creative Role of Economic Liberties?

Habermas' discourse theory stresses the autonomy of public deliberation transcending the spontaneous emergence of private networks of legal relationships between individuals. Only the public discourse which is detached from the inertia of overlapping practical forms of coordination can refer to the ideally designed social work of legitimated interpersonal relationships. The democratic constitution is regarded as a legal institutionalization of the priority of the public forum of discourse. Conceptions related to classical liberalism would question the cognitive potential of public deliberation, and even deny its productivity as a normative frame of reference for (post‐)modern societies which are confronted with the challenge of uncertainty and the continuous process of self‐transformation.     

盗窃罪中的法律拟制问题研究——以《刑法修正案（八）》第39条的规定为视角

我国刑法中存在不少法律拟制规定,其出现的根本缘由在于立法者通过影响刑法规范来贯彻某种能够满足社会特定需要的政策和意图。将特殊盗窃归为盗窃罪的牵强与异常,以及立法者基于某种社会特定需要将严厉惩治和打击盗窃行为的政策和意图注入刑法使得特殊盗窃犯罪化等,正是《刑法修正案（八）》第39条对特殊盗窃行为的定性中存在法律拟制的根据所在。然而,法律拟制天生存在着不合理性与不公正性,如忽视了刑法的人权保障机能、有悖于实质正义与主客观相一致的原则等,因此,必须在罪刑法定原则的界域内对修正案规定的特殊盗窃进行严格的解释或限定。     

Commons as possessions: The path to protection of the commons in the ECHR system

The ‘commons’ is not mentioned in the texts of the European Convention on Human Rights (ECHR) or Article 1 of Protocol No. 1 (P‐1). This essay argues that ‘possessions’ — which does appear in the latter — should be interpreted by the European Court of Human Rights (ECtHR) to protect commons against national governments' undue interferences. The argument comprises two parts. First, we analyse the polysemic term ‘possessions’ to show how the current understanding of this category is marred by flawed assumptions and by false dichotomies. Then, we propose an ‘ecological’ construction of legal relationships between subjects and objects. We find support in the ECtHR case law on Article 8. We argue this approach should be extended to Article 1 P‐1: once disentangled from possessive individualism and market paradigms, ‘possessions’ encompass the commons and the category offers a solid legal basis toward the justiciability in Strasbourg of privatisations.     

“司法能动”在中国的展开

原教旨意义上的“司法能动”的核心指的是司法裁判过程中的“立法性”司法。中国法学界对于什么是司法能动在理解上是极不一致的,大多数人根据自己的理解进行了阐发,其中不乏添附、歪曲之界说,甚至以讹传讹之谬误。能动司法在中国的展开,既存在理论根基不足之缺陷,又面临着司法职业化和司法能动化相冲突的尖锐矛盾。但转型社会的现实,又要求中国必须同时完成司法职业化和“中国式”的司法能动化的双重任务。虽然存在诸多不足,司法能动的倡导者提出的问题依然是值得人们认真对待的。