Dead Man Walking: Law and Ethics After Giorgio Agamben's Auschwitz

International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique -     

Ethics, Law, and Commercial Surrogacy: A Call for Uniformity

In the United States at this time, no uniform federal law exists regarding commercial surrogacy, and state statutory schemes vary vastly, ranging from criminalization to legal recognition with contract enforcement. The authors examine how commercial surrogacy agencies utilize the Internet as a means for attracting parents and surrogates by employing emotional cultural rhetoric. By inducing both parents and surrogates to their jurisdiction, agencies circumvent vast discrepancies in state statutory regulative schemes and create a distinct interstate business, absent an efficient regulatory framework or legal recourse in some circumstances. The authors propose a uniform federal regulatory scheme premised upon regulating interstate business transactions to create accountability and legal remedies for both the parents and the surrogate.     

The Expressionless: Law, Ethics, and the Imagery of Suffering

The essay discusses law’s inability to address the phenomenon of human suffering and, at the same time, investigates a possible theoretical kinship between Walter Benjamin’s notion of ‘the expressionless’ and Emmanuel Levinas’s understanding of suffering as the foundation of an interhuman ethics. The kinship between Levinas and Benjamin is examined with reference to suffering in the visual arts and, more specifically, in Matthias Grünewald’s Isenheim Altarpiece and Francis Bacon’s crucifixion triptychs. The essay argues that in the crucifixion scenes of both Grünewald’s medieval altarpiece and Bacon’s triptychs, suffering is what constitutes ‘the expressionless’. After every detail of the image, every element of attribute, motif, composition and colour have been accurately depicted, a residue still remains, an ethical truth that cannot be appropriated into a meaningful unity but that nevertheless calls for a response. While law must always give suffering a utilitarian value in its attempts to assign responsibility for the injury occurred, the essay argues that the fragmentariness in all true art that Benjamin calls ‘the expressionless’ is akin to Levinas’s understanding of the constitutional uselessness of suffering, its essence as ‘for nothing’.

The Legal Case File as Border Object: On Self‐reference and Other‐reference in Criminal Law

What do case files do? With help of an ethnographic study on the care, maintenance, and use of legal case files in a Dutch, inquisitorial context, we work through Latour's and Luhmann's conceptualizations of law. We understand these case files as enacting and performing both self‐reference and other‐reference. We coin the term border object to denote the way the legal case file becomes the nexus between two worlds it itself performatively produces: the world of ‘law itself’ on the one hand, and the ‘world out there’ on the other. As such, our discussion offers clues for a partial reconciliation of Latour's and Luhmann's conceptualizations of law: while Luhmann's insistence on other‐referential operations assist in showing how law forges an ‘epistemic relationship’ with the realities it seeks to judge, Latour's concentration on the materialities of epistemic practices assists in situating these other‐referential and self‐referential operations.     

The Quiet‐Loud‐Quiet Politics of Post‐Crisis Consumer Bankruptcy Law: The Case of Ireland and the Troika

A decade after the Global Financial Crisis, many developed economies continue to strain under excessive household debt. This article presents evidence suggesting that the failure of policymakers to enact debt relief measures may lie in the superior influence of the coordinated and concentrated financial sector over legislative processes, as compared to the diffuse and disorganised interests of consumer debtors. Post‐crisis popular interest in technical issues of personal insolvency law created only a narrow space of political opportunity. Soon these questions returned to the domain of technocratic actors and corporate influence. The article examines this situation through an inter‐disciplinary case study of consumer bankruptcy reform in Ireland under ‘Troika’ supervision. Proposals initially billed as assisting over‐indebted households developed into increasingly creditor‐friendly legislation in ‘quieter’ stages of technocratic decision‐making. The stark implications of these findings highlight obstacles to resolving household debt problems and consequent risks of economic and political instability.     

Law, Politics, and Violence Against Women: A Case Study of Palestinians in Israel

Major controversies regarding the value of legal and policy reforms have accompanied research on wife battering and social reactions to it. The present study examines the utility of law enforcement and emphasizes the relationship between gender, culture, and politics. It points to the difficulties arising from the shift from private, traditional methods of dealing with violence against women to a more public approach characterized by intervention of the state and the criminal justice system. In this connection, it was hypothesized that enforcement of the Israeli Law Against Family Violence among the oppressed and discriminated Palestinian minority generates new conflicts within the group, exacerbating control and abuse and re-victimizing women. Social control agents (formal and informal) who were interviewed about their perceptions and attitudes regarding the applicability of such a law pointed to obstacles created by sociocultural variables, the political legacy and procedural barriers. An attempt is made to show that application of the law without prior preparation and understanding of its sociocultural and political ramifications may produce adverse effects at the victim's expense. That is, unless power struggles, cultural pressures, and political priorities are taken into consideration, criminal strategies that seek to eliminate abuse may prove to be dangerous.     

民法典编纂与法官“造法”:罗马法的经验与启示

文本研究了罗马法上裁判官法的发展以及市民法—裁判官法二元体制的形成,以及罗马法通过《永久告示》的编纂和法学家研究的努力,将其整合为一个体系的历史过程.借鉴这一历史经验,在中国民法典编纂中必须对既有的民事领域的司法解释进行全面的整理和汇编,然后整合到未来中国民法典之中去.在民法典编纂之后,我国最高法院的“造法”功能应当发生根本性的转型,目前的这种通过司法解释来造法的体制需要加以重大地改革.     

The Devil''s Choice: Re-Thinking Law, Ethics, and Symptom Relief in Palliative Care

Health professionals do not always have the luxury of making "right" choices. This article introduces the "devil's choice" as a metaphor to describe medical choices that arise in circumstances where all the available options are both unwanted and perverse. Using the devil's choice, the paper criticizes the principle of double effect and provides a re-interpretation of the conventional legal and ethical account of symptom relief in palliative care.     

Law, Finance, and Politics: The Case of India

The liberalization of India's economy since 1991 has brought with it considerable development of its financial markets and supporting legal institutions. An influential body of economic scholarship asserts that a country's "legal origin"—as a civilian or common law jurisdiction—plays an important part in determining the development of its investor protection regulations, and consequently its financial development. An alternative theory claims that the determinants of investor protection are political, rather than legal. We use the case of India to test these theories. We find little support for the idea that India's legal heritage as a common law country has been influential in speeding the path of regulatory reforms and financial development. Rather, we suggest there are complementarities between (1) India's relative success in services and software; (2) the relative strength of its financial markets for outside equity, as opposed to outside debt; and (3) the relative success of stock market regulation, as opposed to reforms of creditor rights. We conclude that political economy explanations have more traction in explaining the case of India than do theories based on "legal origins."     

Climate Change,Wildlife Movement and the Law: A Case Study from New Zealand

The United Nations Framework Convention on Climate Change mandates parties to prepare for adaptation to climate change. This is of direct relevance to the management of wildlife. Climate change is likely to alter and/or expand the habitats of wildlife and may make the conditions within existing habitat ranges unsuitable for the continued existence of a species. Of necessity, efficacious adaptation must attempt to address this likelihood. Using New Zealand as a case study, this paper considers the range of present legal instruments that might be utilized within that nation to manage the movement of wildlife and identifies any lacunas that should be addressed. The conclusions will be of interest to any nation wishing to protect wildlife from the adverse effects of climate change.     

疑案·存案·结案——从春阿氏案看清代疑案了结技术

清末春阿氏杀夫案在司法档案和纪实小说中有着不同版本。刑部、法部和大理院轮番审理,未能查出事实真相。大理院迫于结案的压力,以存案的方式了结了该案。判决书内容含混,而处理疑案的技艺则甚为高超。以疑案及其结案技术为切入点,重新审视并评价皇权下的司法实况,可以观察到司法现实复杂而生动的本来面目。     

Making the Case for Socio‐legal Research in Land Law: Renner and the Law of Mortgage

The aim of this article is to enhance knowledge of and to encourage further research into two areas not traditionally the subject of socio‐legal research, namely, the work of Karl Renner and the English law of mortgage, for three reasons. First, an account of them supports the proposition that a true understanding of law requires knowledge of its origins, content, and function. Second, Renner's theory can contribute significantly to our understanding of law by offering an alternative to the polarized debate between legal autopoiesis and other sociological conceptions of law. Third, it has much to tell us about the relationship between legal and social change. In particular, Renner's work suggests that those seeking legal reform should look not to the legislature, but to those capable of influencing its ‘social function’. Those frustrated by the lack of doctrinal reform within the law of mortgage can take heart, therefore, from the continual process of change evident in its social function. Ultimately, however, further socio‐legal research is required, for a more developed understanding of the law of mortgage.