Breaking and Entering My Own Computer: The Contest of Copyright Metaphors

In the current debate over copyright law, those who support maximum copyright protections have advanced their agenda largely via the metaphor of ownership in physical property. As part of this metaphorical system, they have successfully argued that digital rights management (DRM) systems deserve legal protections befitting locked doors. This article is a discourse analysis of this related system of metaphors and of opponents' metaphorical and non-metaphorical responses. Scholars who oppose the maximalist vision of copyright have devoted considerable thought to the problem of metaphors, including especially the search for metaphors that can challenge the metaphor of property. The article concludes there is work yet to be done on this count. As an incremental contribution to this conversation, the article suggests additional arguments, including additional metaphors in search of a new means to conceptualize copyright law.     

Components of Legal Concepts: Quality of Law,Evaluative Judgement,and Metaphorical Framing of Article 8 ECHR

This paper looks at the use of metaphor and its effect on the interpretation of the ‘quality of law’ in Art. 8 cases of the European Court of Human Rights. It demonstrates the Court's reproduction of specific metaphorical frames ‐ a finding consistent with the use of metaphor in judgment experiments in cognitive linguistics. The Court employs metaphors conceptually coherent with those used in their cited precedent, in their representation of the successful pleadings within their judgments and insists (implicitly) on different metaphors in dissent. This paper argues that the use of congruent metaphors may be indicative of metaphor as a contributing factor in how judges reason. In the least, it is a significantly understudied phenomenon and this paper provides evidence for the salience of its approach for understanding judicial reasoning.     

The Languages of the Law: An Integrated View From Vico and Conceptual Metaphor Theory

Work on the relation between figurative language and the law is a fairly recent trend, within legal discourse studies, linguistics, and semiotics. The work in conceptual metaphor theory, for example, is starting to unpack the underlying metaphorical and metonymic structure of legal language, producing some new and important insights into the nature of this language. Missing from this emerging line of inquiry are the views of the Neapolitan philosopher Giambattista Vico, who was the first to understand the power of figurative language in the creation of symbolic systems, like language and the law. His tripartite evolutionary model of language shows that there is not one language of the law, but three “languages.” By integrating Vico’s model with the work in conceptual metaphor theory it will be possible to penetrate the underlying conceptual structure of legal discourse and thus lead to a more insightful science of this discourse.     

Metaphorical Use of Algorithm in Legal Reasoning

The current use of big data in the legal framework suggests the idea of algorithm as a new topos of the legal rhetoric. Indeed, in addition to the “rhetoric of algorithm”, an “algorithm of rhetoric” may also exist, in strict connection with an anthropological structure. Even leaving aside its epistemic value, the algorithm is in fact always experienced by the jurist through a metaphorical process, in a very similar way, for instance, to the metaphorical use of graphs in economics (McCloskey). That said, the reasoning about big data is metaphorical as well, and this allows us to believe that there is still a role for pathos and ethos within the legal reasoning. Moreover, and most importantly, the ideal to which the data-based knowledge (the so called dataism) aims—that is, the pretension of being able to map all that there is to know—is metaphorical, too. In this paper I will discuss algorithms and big data in the guise of new topoi. The aim of this paper is therefore to imagine a philosophical-juridical semiotic by means of which it is possible to highlight the persistent difference between reasonableness and reason in the judge’s work. Vis-à-vis algorithms and big data, as well as the rules of law, the judge does not act as bouche de la loi, but rather practices a reason which is irreducibly rhetoric and related to the humanities.

     

The Nasty Business of Aging

Hartog, Hendrik. 2012 . Someday All This Will Be Yours: A History of Inheritance and Old Age . Cambridge MA: Harvard University Press. Pp. 353. $29.95 cloth. This essay explores the contribution of Hendrik Hartog's Someday All This Will Be Yours to an understanding of old age policy and the aging experience more broadly. It starts by discussing how Hartog's study contributes to a modern understanding of the legal structure surrounding old age. It then discusses how the narrative is colored, in part, by looking at the cases from a caregiver's perspective, and explores the implications of this perspective. Finally, it suggests avenues for building on Hartog's work by using modern legal cases to explore how courts today perceive the moral and legal obligations surrounding the duty to provide care.     

Justice ‘Under’ Law: The Bodily Incarnation of Legal Conceptions Over Time

The article uses embodiment and the experiential basis of conceptual metaphor to argue for the metaphorical essence of abstract legal thought. Abstract concepts like ‘law’ and ‘justice’ need to borrow from a spatial, bodily, or physical prototype in order to be conceptualised, seen, for example, in the fact that justice preferably is found ‘under’ law. Three conceptual categories of how law is conceptualised is examined: law as an object, law as a vertical relation, and law as an area. The Google Ngram Viewer, based on the massive library of books that Google has scanned, has been used to study legally relevant conceptions over time within each of these three categories, from 1800 to 2000. In addition, the article suggests a type of analytical method of ‘metaphor triangulation,’ that is, the replacement of prevailing metaphors with unusual ones in order to increase the level of awareness of what conceptual content the prevailing metaphors involve.     

Decline of the English jury*

Abstract

This biographical study of the lived experiences of six law teachers offers a new dimension to understanding the dynamics of law teaching. The overall purpose of the study is to reveal how these law teachers make sense of the world of legal education in terms of individual identities, values and whether they necessarily regard themselves as academics. The significance of the study is the contribution it seeks to make in understanding individual law teachers and how they experience the dynamics of a rapidly changing teaching environment. The study reveals how different experiences emerge through a complex interplay between spheres of influence and theoretical frames of reference. A theoretical perspective considers three possible explanations, work orientation, performativity and supercomplexity, with regard to how experiences fit within apparent epistemological shifts in the academy.

The biographical method has not hitherto been applied to understanding this dimension of legal education. The purpose in adopting this method is to make a deliberate departure from more traditional research methods in legal education and to determine the extent to which it might be possible to see the world of legal education as a lived experience. This approach provides tools of analysis for understanding the dynamics of law teaching and dynamic identities.     

An Exploration into Law and Narratives: The Case of Intellectual Property Law of Biotechnology

This essay explores the possibility of applying narrative analysis as a tool for the socio-cultural study of law. Narrative is understood to be both a form of representation of reality, as well as a starting point into the enquiry about the nature of reality itself. Consequently, an analysis of legal narratives could help to assess law’s impact on our understanding of social reality and of ourselves. The narrative context, which is examined for its plot and metaphors, is the intellectual property law of human biotechnology. The legal representation of techno-scientific knowledge in intellectual property law is contrasted against other conceptions of science, especially with the ones that are put forward by scholars in science and technology studies and anthropology. It is argued that the present legal narrative of human biotechnology and intellectual property not only lacks sufficient understanding of the scientific knowledge-making process but also, importantly, that it is in need of a self-reflexive understanding of its own practice. At the end, the possibility of changing the present legal narrative will be probed with the help of different narrative theories of the self and of representation, which have been advanced by White, Taylor and MacIntyre.     

法律实用主义方法视角下的检察工作科学发展

科学发展是检察工作践行科学发展观、实现法律监督职能的体现。作为一种司法哲学,法律实用主义推崇行动的价值、强调实际工作成效,主张能动的司法行为,关注社会的最终目的性需求,其合理内核为探究检察工作科学发展提供了方法视角。借鉴法律实用主义的方法去审视检察工作的现状与未来,认识检察工作科学发展的内涵与衡量标准,排除阻碍检察工作科学发展的障碍因素,践行于具体的检察行动,才能取得检察工作的实际成效、实现科学发展。     

犯罪构成的性质:事实认识方法抑或规范解释模型

犯罪构成性质问题是犯罪构成理论的基础性和方向性问题。从事实与规范关系视角考察,目前世界范围内对犯罪构成性质的定位有案件事实认识方法与规范解释模型两种。从应然的立场,基于事实与规范关系的法理、犯罪构成理论的目标以及犯罪构成的实际内容等方面的考量,应将犯罪构成性质定位于刑案事实认识的方法而非法律规范解释的模型。这一犯罪构成性质的新定位有着法教义学的重大意义,体现在这一新定位能够深刻体现犯罪构成的本真、合理择定犯罪论体系建构完善的方向和路径、有效推进犯罪认定的司法实践等方面。     

占有在现代财产制度中的地位申明———一种基于动态冲突的考察

占有因其独占性、排他性以及在动产上所独具的权利外观效力,导致其负载权利与第三人利益的冲突,成为物权法调整客观公正与交易安全的关键制度.在对占有性质重新定位的前提下,通过对财产制度中占有关系的检索,可在交易各方主体的利益冲突关系中对占有概念进行理性的阐释.通过对此类占有关系的剖析,并通过对占有的性质——法益的进一步抽象,可以厘清占有中法益在财产制度中的具体法律价值.其体现为本权的冲突上属排他性冲突,保护方法上为非此即被:或保护权利或保护第三人利益.     

Promoting a New Bilateral Legal Framework for China-EU Economic Relations

Aiming at promoting a new bilateral legal framework for China-EUeconomic relations without political interference, this paperfirst surveys the developments of China-Europe economic relationsand the relevant legal arrangements since 1949; second, it dealswith political issues affecting China-EU economic relations;and third, it discusses basic legal considerations in signingChina-EC economic treaties for the Chinese side. The authorpoints out that the China-EC Economic Cooperation Agreementin 1985 has proved insufficient for practical needs and a substitutiveagreement should be promoted in the new era.     

司法证明模糊论

“真实”本身具有多元解释,是一个不可能得到精确认定的模糊概念。“事实”必须为法官所确立,是一种个性思维过程后的结论,可称为“法官真实”。从模糊理论与心证演变模式的三个阶段的视角看,自由心证的实质是模糊心证。司法证明必须容忍甚至鼓励富有极大模糊性的日常生活语言以描绘案件事实。模糊理论为司法证明科学的发展带来了新的视角与方法,扩展了研究者理性选择的空间,做出了不同于既有法学语境的诠释,试图形成一个能够科学描述和处理司法证明模糊性的概念体系和方法论框架,以突破摇摆于确定性与不确定性之间的困惑。     

On Law and Logic

Abstract. The main purpose of this paper is to explore the role played by logic in the legal domain. In the traditional conception which underlies the movement of codification, judges are able to find in the legal system (the Master System) a unique answer for every legal problem. This entails its completeness, consistency and the possibility of deriving from it the contents of all judicial decisions. Although the ideal model of this conception is supported by important theoretical and political ideals, it has significant shortcomings. The elements of normative systems (Master Systems) are "norms" and not mere "norm-formulations." A "norm" is the meaning attributed to normative linguistic expressions. The set of all normative expressions, such as statutes, codes, etc. forms what is called the Master Book. One of the main problems for the ideal model is the identification of a normative system behind the Master Book. Interpretative arguments are the tools designed to solve these problems. Although the requirements of the model are not totally fulfilled in actual practice, it remains as an effective ideal rational goal behind legal activities linked to adjudication and most theoretical approaches to law.     

CLOUD act agreements from an EU perspective

For many years, transatlantic cooperation between the EU and the US in the area of personal data exchange has been a subject of special interest on the part of lawmakers, courts – including supranational ones – NGOs and the public. When implementing recent reform of data protection law, the European Union decided to further strengthen guarantees of the protection of privacy in cyberspace. At the same time, however, it faced the practical problem of how to ensure compliance with these principles in relation to third countries. The approach proposed in the GDPR, which is based on a newly-defined territorial scope of application, clearly indicates an attempt to apply EU rules extraterritorially in relation to data processors in third countries.Irrespective of EU activity, the United States has also introduced its own regulations addressing the same problem. An example is the federal law adopted in 2018, specifying how to execute national court orders for the transfer of electronic data. The CLOUD Act was established in response to legal doubts raised in the Microsoft v United States case regarding the transfer of electronic data stored in the cloud by US obliged entities to law enforcement authorities, as well as in cases where this data is physically located in another country and its transfer could result in violating the legal norms of a foreign jurisdiction. The CLOUD Act also facilitates bilateral international agreements that enable the cross-border transfer of e-evidence for the purposes of ongoing criminal proceedings. Both the content of the new regulations and the model proposed by the US legislature for future agreements concluded on the basis of the CLOUD Act can be seen as an alternative to regulations arising from EU law.The purpose of this paper is to analyse the CLOUD Act and CLOUD Act Agreements from the perspective of EU law and, in particular, attempt to answer the question as to whether this new legal mechanism brings the EU and the USA closer to finding common ground with regard to a coherent model of exchange and protection of personal data.     

法官的理性认知与司法前见

法官认知是一切纷争能够得到解决的前提条件,是法律世界存在的支柱。法官的认识须由客观事实的可靠性来证明,可靠性首先意味着确定性。任何法律现象都被理解为确定的东西,被理解为稳固不变的东西,除非被立法者自己废止。＂法官所思＂是法官所有认识的真理性的第一保证,法官认识的目的就在于寻求把握审判过程中的司法真相。如果我们把司法看成是一种在司法实践基础上所发生的历史性的活动,那么从事司法审判活动的法官首先有了一种对于法治的在先理解,这就是法官的＂前见＂。法官前见的获得是其理性选择的结果,体现了事物认识发展的本质,由此构成了法官的视域。     

论人工智能法律主体的法哲学基础

当下人工智能主体学说面临诸多问题,需从法哲学视角予以审视。就人工智能本体而言,其行为具有自主性,不宜纯粹以客体相待;从他者期望视角观察,人工智能拥有道德责任能力,系道德主体。法律主体理论经历了由自然人有限人格到全面人格,再到自然人、法人综合人格的演化过程,呈现客观化趋势,不唯理性、意志等主观要素论,其为人工智能法律主体提供了栖居空间。在目的论意义上,人工智能能够推动积极向善,助力美好生活,实现显著的经济社会价值,作为法律主体具有合目的性。在当代,传统主体哲学转向,人的哲学危机引发新思考,尤其是人类中心主义的主体-客体范式发生变化,客体主体化的历史经验及当代实践显现一种哲学可能性,即主体不限于人,从而强化了人工智能法律主体的可能性。     

法律解释：克制抑或能动

近来,实务界一直在高调倡导能动司法或司法能动,从而勾起了理论界对司法能动主义探讨的热情。像往常一样,实务界提出的问题,基本是在感觉的基础上理解能动意义的,没有经过认真的论证。从哲学的意义上看,司法能动是法律解释的本质,然而法治要求法律人应该是理性、克制地能动司法,否则能动就变成了毁坏法治的口号。在司法过程中即使少不了能动也不能忘记根据法律进行思维,不顾法律意义的安全性而任意能动不符合法治的基本要求。     

法律空间建构的逻辑演进

近年来,学术界越来越多的学科正在向空间理论研究转向.法律的空间性研究也具有一定学术和应用价值.本文以于法律空间性为研究视角,从三个不同的维度进行逻辑推演:维度构成、作用机制和研究方法.本研究的目的是探索利用抽象的数学模型来建构一个法律空间的可能性,特别是在信息技术高速发展的背景下,借鉴卢曼开创的系统法学方法论,以解释、...