Protection of Property Rights by both International Human Rights Law ＆ Contracting States＇ Domestic Law and Its Enlightenment to China

通过对联合国框架下的人权条约、各区域人权条约以及主要缔约国在外国人财产权保障方面的规定和做法进行研究,可知联合国人权条约对一般意义上个人（包括外国人）财产权的保护程度明显偏弱,各区域人权公约对财产权的保护则各有侧重,各缔约国对外国人的财产普遍有一定限制。其中有不少是我国在外国人财产权方面制定和适用法律、规则可借鉴的做法。     

Decision-making by machines: Is the ‘Law of Everything’ enough?

Machines have moved from supporting decision-making processes of humans to making decisions for humans. This shift has been accompanied by concerns regarding the impact of decisions made by algorithms on individuals and society. Unsurprisingly, the delegation of important decisions to machines has therefore triggered a debate on how to regulate the automated decision-making practices. In Europe, policymakers have attempted to address these concerns through a combination of individual rights and due processes established in data protection law, which relies on other statutes, e.g., anti-discrimination law and restricting trade secret laws, to achieve certain goals. This article adds to the literature by disentangling the challenges arising from automated decision-making systems and focusing on ones arising without malevolence but merely as unwanted side-effects of increased automation. Such side-effects include ones arising from the internal processes leading to a decision, the impacts of decisions, as well as the responsibility for decisions and have consequences on an individual and societal level. Upon this basis the article discusses the redress mechanisms provided in data protection law. It shows that the approaches within data protection law complement one another, but do not fully remedy the identified side-effects. This is particularly true for side-effects that lead to systemic societal shifts. To that end, new paradigms to guide future policymaking discourse are being explored.     

Polar Bear Sports Hunting: Canada’s Flawed Interpretation of the International Polar Bear Agreement

Abstract

In 1973 the five polar bear range states (Canada, Norway, Denmark, the United States, and the Union of Soviet Socialist Republics) entered into the International Agreement on the Conservation of Polar Bears and Their Habitat (“the Agreement”). The Agreement’s intention was to protect polar bears through conservation and management measures including, inter alia, prohibiting the taking of the carnivore. The implementation and enforcement of the Agreement was left to each individual country, resulting in differing management practices and legal frameworks among the signatory states. This is particularly stark in the context of sports hunting, with all nations except Canada outlawing the practice. Canada, striking out on its own, chose to interpret the provisions of Article III of the Agreement in such a way as to allow their provinces and territories to enact legislation to regulate the sports hunting of polar bears. This article argues that sports hunting is not a traditional right of Canada’s indigenous peoples and, therefore, Canada’s interpretation of the Agreement is critically flawed.     

The Outer Limits of Copyright Law – Where Law Meets Philosophy and Culture

This article engages in a cultural critique of copyright law. The point is to explain how and why this body of law is culturally exclusive, notwithstanding the claims made by judges and others that the law is culturally open and inclusive. This involves a discussion of the relationship between philosophy and law, and of how this nexus has been misrepresented by the courts and in recent writings on the subject. Analysis centres on a discussion of Australian case law involving indigenous claims of communal ownership of copyright and the treatment of technology when it comes to attributing authorship.     

What Is Transnational Law?

Is it important to conceptualize transnational law and “map” it as a new legal field? This article suggests that to do so might help both juristic practice and sociolegal scholarship in organizing, linking, and comparing disparate but increasingly significant types of regulation. To explore the idea of transnational law is to raise basic questions about the nature of both “law” and “society” (taken as the realm law regulates). This involves radically rethinking relationships between the public and the private, between law and state, and between different sources of law and legal authority. Taking as its focus Von Daniels's The Concept of Law from a Transnational Perspective and Calliess and Zumbansen's Rough Consensus and Running Code (both 2010), the article considers what approaches may be most productive, and what key issues need to be addressed, to make sense of broad trends in law's extension beyond the boundaries of nation‐states.     

“Intuitive” Lie Detection of Children’s Deception by Law Enforcement Officials and University Students

Adults ability to detect childrens deception was examined. Police officers, customs officers, and university students attempted to differentiate between children who lied or told the truth about a transgression. When children were simply questioned about the event (Experiment 1), the adult groups could not distinguish between lie-tellers and truth-tellers. However, participants were more accurate when the children had participated in moral reasoning tasks (Experiment 2) or promised to tell the truth (Experiment 3) before being interviewed. Additional exposure to the children did not affect accuracy (Experiment 4). Customs officers were more certain about their judgments than other groups, but no more accurate. Overall, adults have a limited ability to identify childrens deception, regardless of their experience with lie detection.     

Interdisciplinarity and the Authority Paradigm: Should Law Be Taken Seriously by Scientists and Social Scientists?

This article questions whether those outside law should take law seriously as an intellectual discipline capable of contributing to the development of epistemological thinking in the natural and social sciences. The discipline is approached from a diachronic and synchronic position with emphasis on the civil law tradition. It will be shown that the governing paradigm in legal studies has always been the 'authority paradigm', which results in law being closer to theology than to the social sciences. Its principal actors (judges) make assertions free from the normal constraints of scientific method; accordingly, the idea of a 'legal science' (imported into the common law tradition after 1846) must be treated with great caution. It is not a science dedicated to enquiring about the nature of the physical world, society or social relations. Its epistemological development remains trapped in the seventeenth and eighteenth centuries: thus, as a discipline, law has little to offer other social sciences.     

The Advent of Preventive Criminal Law: An Erosion of the Traditional Criminal Law?

Criminal law in contemporary societies is undergoing a transformation or according to some, even a paradigm shift. The reach of criminal law is now extended to terrains that were hitherto immune to criminalization. These new forms of criminalization. in post-heroic risk societies are targeting conduct well before it causes a harm. The prime examples of this preventive criminalization. are pre-inchoate offences, crimes of possession of “innocent” objects and crimes of abstract endangerment. The common trait of these offences is that they enable the so-called preponing criminal liability (Vorverlagerung), through which the earliest of preparatory acts, neutral, everyday activities such as merely standing around or merely possessing may well fall within the reach of criminal law. This phenomenon is now taking place virtually everywhere considered by many as an erosion of the traditional post-enlightenment criminal law model. Yet, proponents of the preventive criminal law are suggesting that such laws are needed in order to avert risks (terrorist attacks, for instance) while they are at preparation phase. There is, therefore, a tension between the traditional criminal law and new security interests that pose new questions which need to be addressed by a meticulous analysis. In this article I shall try to deal with following questions: Whether these preventive offences are inherently incompatible with the rule of law? How far a law-abiding nation can go in criminalizing preparatory acts? Are there any promising constraining constitutional principles or instances that delimit preventive criminalization?     

Law reform in small states†

Law reform can be a complex and challenging process in any jurisdiction. Small states face additional challenges, and some advantages, associated with a small population and land area. This article looks at how law reform agencies in small states adapt the law reform process, and the particular significance of comparative research in that context. It goes on to outline how, despite the challenges, small state and jurisdiction law reform agencies have made very considerable contributions to the law. Finally, the article assesses the particular utility of co-operation between law reform agencies, including through regional associations.     

Law Like Poetry – Burnt Norton

Poetry and law are usually cast in opposition but there is a little regarded dimension of responsiveness in law which would incline them towards similarity. The opposition and the similarity are amplified in various instances. Then similarity is affirmed in an involvement in the first of T.S. Eliot'sFour Quartets, ``Burnt Norton'. This revised version was published online in August 2006 with corrections to the Cover Date.     

Can Tort Law Be Moral?

According to the established orthodoxy, the law of private wrongs—especially common law torts—fails to map onto our moral universe. Four objections in particular have caught the imagination of skeptics about the moral foundations of tort law: They purport to cast doubt over the moral appeal of the duty of care element; they target the seemingly inegalitarian objective standard of care; they object to the morally arbitrary elements of factual causation and harm; and they complain about the unnecessary extension of liability under the guise of the proximate cause element. Analyzing these four prevailing arguments concerning the a‐moral (and, with regard to some interpretations, anti‐moral) character of tort law, I shall seek to show that the normative structure of tort law can, nonetheless, be reconstructed so as to reflect, to an important extent, our considered judgments about basic moral principles.     

The French Constitutional Law of 23 July 2008 as seen by MPs: Working or Talking Parliament?

The French constitutional law of 2008 is, with the modification of 47 articles, the most important revision of the Constitution of the Fifth Republic, at least in quantitative terms. Surprisingly, there have been few attempts to evaluate the effects of the reform, whose official aim was to improve the status of the role of the (traditionally weak) French parliament. The purpose of this contribution is to analyse how MPs themselves judge this reform and its effects, especially on the role of the parliament and its everyday work. To do so we make use of the data of the LEGIPAR research project (September 2009–January 2011): 227 MPs answered closed and open questions about their perception of parliamentary work in face-to-face interviews. The data of the project DEPASTRA (2005–6) allow for a comparison with MPs' positions before the vote of the constitutional revision of 2008.