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.

     

The Great Rabbit Massacre – A “Comedy of the Commons”? Custom, Community and Rights of Public Access to the Links of St Andrews

In the US courts and legal scholars have rediscovered the English doctrine of custom. In her essay ``The Comedy of the Commons: Custom, Commerce, and Inherently Public Property', Professor Carol Rose argues that customary uses of recreation lands should be upheld by courts because the highest value of such land is achieved by keeping them open to the public. Rose relies in her argument on the English doctrine of custom, but the doctrine of custom legitimates local not public use. British legal history, however, provides an example of such a ``public' common in the Links of St Andrews. In the case Dempster v. Cleghorn, the golfing public sought to vindicate their customary right to the maintenance of golfing ground as it had been ``in all times past'. This article examines the case of Dempster, and the consequent riot, and asks whether it was a ``comedy of the commons'. It concludes that despite ten years of litigation and the extirpation of the Dempsters' warrened rabbits, the case nevertheless is a ``comedy of the commons' that provides a model of the meditation of public use by local custom and community. This revised version was published online in August 2006 with corrections to the Cover Date.     

Braving Jim Crow to Save Willie McGee: Bella Abzug,the Legal Left,and Civil Rights Innovation, 1948–1951

This article considers the role of Bella Abzug, lead counsel for Willie McGee from 1948–1951, in shaping the defense of this Cold War era Mississippi rape case. Representing McGee left an indelible mark on Abzug: she made her first trip south, wrote her first Supreme Court petition, and faced her first death threat. Participation in the Left legal bar—especially the National Lawyers Guild and Left feminist circles—shaped Abzug's legal consciousness as she redirected the McGee defense significantly in 1950. By joining race and sex, Abzug's legal argument zeroed in on the taboo of interracial sexual relations at the heart of Southern rape cases, thereby exposing the innermost sexual color line. She urged the courts and cause lawyers—albeit unsuccessfully—to pursue a more radical civil rights agenda than outlawing public segregation, as ultimately achieved in Brown v. Board of Education (1954), and typically recognized in Cold War civil rights scholarship.     

法教义学观念的源流

从历史上看,教义学观念首先起源于古希腊医学,随后古希腊哲学和古罗马的"规则法学"继受了相关观点并予以创新。法教义学经中世纪注释法学与人文主义法学奠定雏形,并由理性自然法学说提供方法论基础。源流时期的法教义学观念保持了大体一致:在基本观念上,法教义被认为是用以表述法律的一般性规则或命题,具有权威性;在方法论上,法教义学被认为是公理演绎方法(几何学方法)构造出的概念-命题体系。这使得作为知识形态之法教义学有别于研究型思维、决疑术和论题学。澄清这一源流可以为当下的法教义学研究提供更为扎实的"历史的向度"。     

“Going to Law”: Reflections on Law,Religion, and Mitra Sharafi's Law and Identity in Colonial South Asia

This essay explores religion's need for law, comparing the story told in Mitra Sharafi's Law and Identity in Colonial South Asia (2014)—about the virtual hijacking of British colonial law to serve the communal religious needs of Parsis in colonial India—to other contexts in which secular and religious legal systems have built symbiotic relationships, including in the United States and Thailand. It concludes by urging a reweaving of religious and legal histories after the critique of secularism and its shadows, separationism, and antinomianism.     

Law's Allure and the Power of Path-Dependent Legal Ideas

Gordon Silverstein's Law's Allure (2009) advances a two-part thesis on the power of legal ideas. The first is that legal precedents establish the ideological baselines on which legislative and bureaucratic policies are developed. Silverstein amply demonstrates the validity of this thesis. The second is that by establishing ideological baselines, legal precedents contribute to a version of path dependency (or the idea that early choices determine long-term developments) that is significantly more constraining than other forms of institutional entrenchment. Put simply, law shackles creativity in politics. This thesis I do not find persuasive, in part because Silverstein offers little evidence for it and in part because a growing body of literature suggests the contrary: the cross-fertilization of ideas from one field to another—law to politics, for instance—contributes to, rather than retards, creative change. Nonetheless, while its broader ambitions are not satisfied, Law's Allure's narrow thesis—that precedent profoundly shapes policy development—is important and worthy of a major book in itself.     

H. L. A. Hart on Legal Obligation*

Abstract. The author discusses Hart's concept of legal obligation, especially his contention that there is an obligation to obey the law which is peculiarly legal, i.e., non-moral. This view is held to be mistaken. What is denied is that legal rules, merely by their being issued, offer a justification for the use of coercion to ensure compliance with them. Although moral and other social (customary) rules are considered self-justifying, that is not the case of legal rules. Any analogy between these two types of rules in justifying their implementation by force is deemed wrong.**     

中国刑法教义学:经验、反思与建构

当代中国刑法教义学经历了去政治化工具的教义学、作为解释学工具的教义学及作为学科精致化工具的教义学的发展节点。面临实定法的粗疏与缺陷,理论继受过程中的移植落差,中国刑法教义学的发展呈现出诸多特殊的面向。一方面是中国刑法实定法规定的非理性,另一方面是刑法教义学本身的高度理性,二者之间形成了持久的紧张关系,在这种紧张关系之中开展教义学研究需要厘清实定法不可质疑性前提与教义学科学性的关系、立法论与解释论的关系,培育连接立法-司法-法学研究者的教义学共同体,同时警惕对德日刑法教义学的过度路径依赖,积极进行本土化教义学理论的创新与构建。     

Legal Order,Legal Pluralism,Fundamental Principles. Europe and Its Law in Three Concepts

The essay analyses the way in which the concepts of legal order, legal pluralism and fundamental rights have been used to describe (and decide) what European integration is (and what it ought to be) from the perspective of the law. The essay does not provide a legal theory but limits itself to investigating how certain concepts have been employed to justify legal decisions and to construct legal theories. The juridical discourse on Europe is examined to identify some trends in contemporary legal culture: the decline of a tradition of legal thought, ‘legal dogmatics,’ the vanishing of the distinction between internal and external law (between domestic law and international law, and between positive law and morality), the growing importance of fundamental rights discourse, the centrality of balancing test, the widespread criticism of legal science's claim to neutrality and the consequent normative turn affecting legal scholarship.     

Realism about the Nature of Law

Legal realism comes in two main versions, namely American legal realism and Scandinavian legal realism. In this article, I shall be concerned with the Scandinavian realists, who were naturalists and non‐cognitivists, and who maintained that conceptual analysis (in a fairly broad sense) is a central task of legal philosophers, and that such analysis must proceed in a naturalist, anti‐metaphysical spirit. Specifically, I want to consider the commitment to ontological naturalism and non‐cognitivism on the part of the Scandinavians and its implications for their view of the nature of law. I argue (i) that the Scandinavians differ from legal positivists in that they reject the idea that there are legal relations, that is, legal entities and properties, and to varying degrees defend the view that law is a matter of human behavior rather than legal norms, and (ii) that they do not and cannot accept the idea that there is a ‘world of the ought’ in Kelsen's sense. I also argue, more specifically, (iii) that the objection to non‐naturalist theories raised by the Scandinavians—that there is and can be no connection between the higher realm of norms and values (the ‘world of the ought’) and the world of time and space—is convincing, and (iv) that Kelsen's introduction of a so‐called modally indifferent substrate does nothing to undermine this objection. In addition, I argue (v) that the Scandinavians can account for the existence of legal relations that do not presuppose the existence of morally binding legal norms by embracing conventionalism about the existence of the sources of law, while pointing out that in doing so they would also be abandoning their legal realism for legal positivism. Finally, I argue (vi) that the implications for legal scholarship of the realist emphasis on human behavior instead of legal norms is not well explained by the realists and appear to amount to little more than a preference for teleological interpretation of legal norms.     

Factors predicting verdicts in cases where battered women kill their husbands

This study tested factors influencing verdicts in legal cases involving battered women who kill their husbands. A total of 388 college students (213 females and 175 males) read a fictitious but prototypical legal case. Subjects received one of three stories varying the level of force used by the husband against the wife before she killed him. Half of the subjects received courtroom testimony regarding the Battered Woman Syndrome. One-half received judge's instructions ofnot guilty by reason of selfdefense (NGRSD), and the other half receivednot guilty by reason of insanity (NGRI) instructions. Subjects decided on a verdict and completed a questionnaire including demographics, reasons for their verdicts, and relevant attitudinal measures. Judge's instructions were most predictive of verdicts, with NGRSD being more likely to produce not guilty verdicts. Verdicts were also influenced by the subject's view of the severity of the past beatings, the testimony of the expert witness, the subject's feelings about the woman using a weapon, race of the subject, the subject's own history of abuse, attitudes toward abuse in relationships, and the subject's belief that people are responsible even if provoked. The preference the subjects showed for NGRSD belies the commonly held belief that impaired mental defenses in these cases would be more likely to yield not guilty verdicts. Situational aspects of the case rather than long-standing attitudes of subjects appeared to be better predictors of verdicts.     

The Inner Logic of Exclusivism (and Inclusivism): Shapiro's Shadowing

Scott Shapiro, a prominent defender of exclusive legal positivism—exclusivism—has intriguingly (re)introduced a logical principle, the endorsement and rejection of which he (I take it) supposes can helpfully distinguish exclusivism from its contrary, inclusive legal positivism—inclusivism. It is an intriguing thought that principles pitched at such a high level of abstraction as this could distinguish between the two versions of positivism. My aim will be to test whether this principle—and associated principles—can do such distinguishing work.     

The Troika: The Interlocking Roles of Commission v. Luxembourg and Belgium,Van Gend en Loos and Costa v. ENEL in the Creation of the European Legal Order

Through comparisons with dispute resolution procedures in the North American Free Trade Area's Side Agreements, and with the debate over the direct effect of World Trade Organization obligations in the European legal order, this paper demonstrates that three of the European Court of Justice's most important decisions—Commission v. Luxembourg and Belgium, Van Gend en Loos and Costa v. ENEL—should be understood as combining to reorganise general international law's relationship between the EU Member States by substituting national court application of European obligations for the use of interstate retaliation as an enforcement mechanism, and thus providing the foundations for the EU's distinctive legal order.     

The Concept of Jurisprudence*

Abstract. The first part of this article contains (i) considerations as to the relationship between jurisprudence and legal dogmatics, legal philosophy, and sociology of law; (ii) considerations about the status of jurisprudence both as a meta- and an object-theory. These lead to the suggestion that jurisprudence should be defined as a general juristic theory of law and legal science. In the second part, the character and elements of this definition are explained systematically. The article's main thesis is that jurisprudence is not distinguished from legal philosophy and sociology of law by its subject or its method, but by the specifically juristic research aspect or perspective it is based upon.     

Combating Violence against Women in India: Nari Adalats and Gender-Based Justice

Using qualitative methodology—field observations and in-depth interviews—the study examines the role of Mahila Samakhya (a group advocating women's equality) and Nari Adalats (informal women's courts) in India in combating violence against women. Interviews were conducted with members of a Mahila Samakhya in the southwest state of Karnataka and complainants who appeared before Nari Adalats. Nari Adalats in Karnataka are an innovation of Mahila Samakhya, a Government of India development program. The results indicate that Nari Adalats exercise broad authority to investigate and dispose of a wide range of domestic violence cases in India. The Mahila Samakhya serves as an advocacy group and provides shelter, legal assistance, and social help as well as education for victims of domestic violence.     

Women's Rights Issues Among Bombay Parsis: A Legal Anthropologist's Thoughts on Mitra Sharafi's Law and Identity in Colonial South Asia

I focus in this essay on legal issues related to women's rights in the British colonial period that are discussed in Mitra Sharafi's 2014 book, Law and Identity in Colonial South Asia: Parsi Legal Culture, 1772–1947. Beginning in the early nineteenth century, the Parsi leadership actively lobbied for laws related to intestate inheritance, women's property rights, divorce, and child marriage that were consistent with their community's customary values and practices. During the same period, legal reform movements were also underway on behalf of Hindu and Muslim women and, to a lesser extent, Christian women. This essay highlights some of the common themes in those movements and discusses, in particular, the similarities and differences in what was achieved for Parsi women and their Hindu sisters, as they and their respective male leaders traversed the road toward greater gender equality under the law.     

Don't Mention the War! R. v Bottrill,ex parte Kuchenmeister (1946) Revisited

R. v Bottrill, ex parte Kuchenmeister (1946) established that a ministerial certificate is determinative of whether a state of war exists between the United Kingdom and another state. But of the ‘Aryan’ German, Kuchenmeister, long a resident in Britain and with a British family, virtually nothing is known. The present paper seeks to uncover the complex story of Kuchenmeister's business activities in the British armaments industry before the war, MI5’s determination to have him interned on the not wholly convincing footing of his loyalty to Germany during the war, and Kuchenmeister's prolonged legal battles with the Home Office. A distinction between the law in books and the law in action may be sharply drawn from the affair.     

U.S. Supreme Court Affirms Potentially Responsible Parties' Right of Action for Cost Recovery

In the wake of the Supreme Court's decision in Aviall—that potentially responsible parties (PRPs) are not permitted to seek contribution from other PRPs under CERCLA unless they have been sued or otherwise settled their CERCLA liability—PRPs and the courts have struggled to identify a remedy for those that voluntarily undertake cleanup of contaminated sites. The Atlantic Research decision resolves a conflict among the circuits and clarifies that PRPs voluntarily incurring cleanup costs pursuant to CERCLA, can maintain an action for cost recovery against other PRPs. The authors discuss the current legal landscape regarding actions for cost recovery as presented in Atlantic Research.     

The Role of Culture in Legal Languages,Legal Interpretation and Legal Translation

The aim of this short essay is to highlight and concisely explore—but not address in depth—some cultural aspects related to legal languages, legal interpretation and legal translation. We would like to consider briefly the following questions: How can elements of legal language, as exemplified by proper names and euphemisms, be connected with cultural (extra-linguistic) factors influencing language units’ formation? How can judicial discourse reflect the culture of a given justice system? How can the legal interpretation affect the degree of legal culture? Are theories of legal interpretation universal or applicable to specific legal cultures? What is the impact of culture on the context of legal translation? How can the cultural background affect the decision to use terms in translation? How does cyberculture impact legal translation?