后现代主义与加拿大的新现实主义法学

20世纪80年代以来,后现代主义在西方蓬勃发展并对加拿大法学理论界产生影响,形成了加拿大的新现实主义法学。这种法学包含了女权主义法学理论、批判种族主义法学理论、原住民法学理论、同性(双性)恋法学理论和批判残疾人法学理论等形态。     

New Legal Realism and the Ethnography of Transnational Law

The new legal realism builds on the strengths of the legal realism of the early twentieth century, viewing law as a set of social processes embedded in historical and political contexts. As it addresses sociolegal phenomena of the early twenty-first century, however, the new legal realism is more attentive to the effects of transnationalism, legal culture, and legal consciousness, and the way ideas and norms travel and are adopted around the world. Asking questions of this kind requires new, more multi-sited or deterritorialized methods of scholarship. This article explores these new perspectives and their methodologies through an examination of the use of human rights in the international movement against violence against women.     

Foucault's Expulsion of Law: Toward a Retrieval

This essay argues that there is an important sense in which Foucault gets law wrong—that the pursuit of Foucault's own objectives had the unintended consequence of inhibiting a fruitful interrogation of the place of law in modernity. His immediate concern was with the emergence of distinctive manifestations of modern power that constitute a new configuration, the disciplinary society. The most distinctive feature of his account of the historical emergence of modernity was his expulsion of law from modernity. This "expulsion of law" is found in his metahistorical thesis that law constituted the primary form of power in the premodern era, and that although law lingers on in the doctrine of sovereignty, it is supplanted by discipline and government as the key embodiments of modernity.
The essay proposes an exercise in retrieval, a "retrieval of law," to recuperate much in Foucault's thought that is suggestive for our understanding of law's role in the constitution of modern society. It rejects Foucault's opposition of law and discipline and makes use of his treatment of government and governmentality toward that end. It argues that a more adequate grasp of the place of law in modernity can be developed by establishing that law and discipline are complementary and characteristically combine in the ubiquitous presence of regulation as the mark of the modem condition.     

Realism and Analysis Within Public Law

Allan, Loughlin and Walker represent leading theorists within the realm of public law analysis. Accordingly, when such theorists write on a similar topic, such as that of the theory of constitutionalism, it can be assumed that their analysis and evaluation of the theory represents a ‘realistic’ account. However, close examination of their writings does not reveal similarity but instead much divergence, even incompatibility. This then raises the question, how can such diversity represent reality? If all three theorists are examining the same phenomenon then surely there must be some similarity between their accounts for there to be reality? Alternatively, if all the perceptions of the theorists are indeed real, then perhaps it is the way that public lawyers represent reality that needs to be examined.     

The Concept of Law Revised—Directives and Norms in the Perspectives of a New Legal Realism

Legal theory usually distinguishes only two kinds of legal realism: the American and the Scandinavian. Another school of this theoretical perspective is German legal realism, which refers to scholars like Ihering, Weber, and Schelsky. According to German legal realism, the author outlines what legal theory can do to persuade modern jurisprudence to face the social reality of law, conceived as institutionalized normative communication. The latter always occurs with reference to already valid and effectively operative legal norms which are used in an established, normatively binding legal practice in a given regional society.     

Left Realism: a defence

Conclusion Can anything be said in conclusion on the essence of the realist approach? It is important to end by restating that realism originates as a reaction, in current social and political conditions to the absences in radical criminology. These are the absence of a discourse about crime and a refusal to talk about the constructive as opposed to the destructive role of institutions of criminal justice. Realism rejects a utopian strategy of waiting for the state to whither away, knowing that we would only have to reinvent it if it did.The starting point for realism is the strategy of democratization. The maximization of democratic participation is ultimately the solution both to the problem of what is crime and to the problem of how to deal with it. The solution to the problem of criminal justice is the democratization of its institutions while at the same time recognising their necessary functions. The realist programme is concerned with the redrawing of the boundaries between and the transformation of the character of institutionsand communities in accordance with the values of socialist pluralism.     

Modes of Political Representation: Toward a New Typology

The mandate‐independence controversy still features prominently in studies of political representation even though the problems with its theoretical foundation and empirical operationalization have long been recognized. This article proposes an alternative typology of modes of representation. By combining type of control (ex ante or ex post) with direction of the interactions (bottom‐up or top‐down), our study captures the most important aspects of the relationship between voters and representatives. We demonstrate how the typology can be used in a survey instrument by comparing the attitudes toward representation of Dutch members of Parliament with the attitudes held by voters, and by relating the views of the members to their behavior.     

融贯论、道德实在与法律——一个基于内在实在主义的整合

不同的真理理论导致不同的法律方法论。符合论实在主义的哲学会导致哲学的和自然主义的法律发现,而融贯论则是规范分析和法律解释的基础。不少哲学家认为没有脱离融贯论的符合论(如普特南)。但同时,从真理的客观性维度讲,融贯论只能保障认知的客观性,而不能获得形而上的客观性。融贯论的结果必然是相对主义。因此,法律哲学的认识论选择必然是折中的,这个折中的认识论可以由普特南的内在实在主义来承担,而内在实在主义将最终引向包容的法律实证主义。     

Toward a New Standard of Attorney Disqualification

In litigation, judges often disqualify attorneys who violate American Bar Association ( aba ) disciplinary standards. Many practitioners, judges, and scholars are growing increasingly hostile to these disqualifications. In this article the author criticizes the view that the standard for court-ordered disqualification should be roughly equivalent to aba standards for withdrawal or ineligibility to accept a case. He argues that the remedy of disqualification should only rarely be used, even when it is clear that an aba disciplinary standard has been violated. He criticizes the view that the standard for court-ordered disqualification should be roughly equivalent to aba standards for withdrawal or ineligibility to accept a case. And he canvasses the Second Circuit's development of a new standard of disqualification—the trial taint test—as well as some recent developments that undercut that standard.     

新法律现实主义的勃兴与当代中国法学反思

本文从对美国“新法律现实主义”的评介入手,简要分析了当代法与社会研究中的现实主义立场和方法及其在世界范围的发展与意义,在此基础上对我国当代法治理念及法学中存在的问题进行反思,以提倡一种以经验(实证)研究为基本方法、从事实和具体问题出发、以解决问题为目标的现实主义法学研究方法和立场。     

The Ad That Changed Libel Law: Judicial Realism and Social Activism in New York Times Co. v. Sullivan

The 1964 decision by the Supreme Court of the United States in New York Times Co. v. Sullivan transformed libel law by extending constitutional protection to the publication of false and defamatory statements about public officials made without actual malice, that is, without knowledge of falsity or reckless disregard for the truth. Less well recognized is the decision's advancement of advocacy advertising and unhindered news coverage as a means to counter racism in the United States. Civil rights history, increasing visibility of advocacy advertisements and the Court's reliance on thin legal precedent suggest the decision embodies judicial realism and social activism.     

Justice and Feelings: Toward a New Era in Justice Research

In this special issue, the relationship between feelings and justice and its consequences are highlighted. Five articles discuss the role that affect, feelings, and emotions play in justice processes across a variety of social settings. In the present introductory article, the position of past and present justice research in relationship to these topics is briefly reviewed. In addition, reasons are outlined to show why a focus on these issues may be pivotal for a better understanding of social justice and how this may pave the way for a new, more process-oriented era in social justice research, focusing more on “hot” cognitive aspects as they pertain to social justice concerns.     

Toward a Signaling Explanation of the Private Choice of Corporate Law

Corporate actors can choose their corporate domicile and haveconsiderable freedom to choose terms in corporate charters.Although contractarian corporate law literature almost alwaysanalyzes the private choice of corporate law through the lensof agency costs, this article considers the choice for its informationalcontent. A particular law may be chosen by an entrepreneur notbecause it reduces agency costs, but because it signals qualityto outside investors. The article considers the choice of aDelaware domicile. Higher expected litigation costs for relativelylow quality firms that accompany a Delaware domicile could implythat choosing Delaware signals a relatively high quality firm.Alternatively, the size and structure of the franchise tax inDelaware could give rise to a signal of quality from locatingthere. The article considers the ambiguous welfare implicationsof the signaling analysis and the debate over mandatory versusenabling rules in corporate law. It also suggests how the signalinganalysis might apply to the debate over the private choice ofa securities regulation domicile.     

Toward a General Margin of Appreciation Doctrine in International Law?

Three recent International Court of Justice decisions –Oil Platforms, Avena and Wall in the Occupied Palestinian Territory– highlight the uncertain status of the margin of appreciationdoctrine in the Court’s jurisprudence. The purpose ofthis article is to evaluate, in the light of contemporary practiceof other courts, the current status under international lawof the margin of appreciation doctrine, which encourages internationalcourts to exercise restraint and flexibility when reviewingthe decisions of national authorities, and to offer preliminaryguidelines for future application. The article also discussesa variety of policy arguments concerning the legitimacy andeffectiveness of international courts, which can be raised insupport of the development of a general margin of appreciationdoctrine with relation to some categories of international lawnorms governing state conduct, and it examines potential criticism.Eventually, it argues that the same considerations which haveled to the creation of ‘margin of appreciation type’doctrines in the domestic law of many states and in the contextof specific international regimes (for instance, the EuropeanConvention on Human Rights) also support the introduction ofthe doctrine into general international law. The position ofthe ICJ towards the application of the doctrine therefore meritsreconsideration.     

Right,Crime, and Court: Toward a Unifying Political Conception of International Law

It is widely acknowledged that human rights law (hereafter, HRL) and international criminal law (hereafter, ICL) share core normative features. Yet, the literature has not yet reconstructed this underlying basis in a systematic way. In this contribution, I lay down the basis of such an account. I first identify a similar tension between a “moral” and a “political” approach to the normative foundations of those norms and to the legitimate role of international courts (hereafter, ICs) and tribunals adjudicating those norms. With a view to bring the debate forward, I then turn to the practices of HRL and international criminal law (hereafter, ICL) to examine which of those approaches best illuminates some salient aspects of the adjudication of ICs. Finally, I argue that the political approach best explains the practice. While each preserves a distinct role, HRL and ICL both establish the basic conditions for the primary subject of international law (HRL and ICL, for the purpose of this article), namely the state, to legitimately govern its own subjects constructed as free and equal moral agents.