The European Court of Justice and its political impact

This article reviews recent advances in the study of the European Court of Justice (ECJ) and its political impact at the European and member state levels. New quantitative as well as qualitative analyses show with great empirical precision that member state preferences guide the Court. The article summarises these findings, but argues that greater attention needs to be given to the (over-)constitutionalisation of EU law in order to fully capture the political impact of ECJ jurisprudence. Even if European judges are less activist than is often assumed and individual decisions are more restrained in the face of member state opposition, incrementally, case law evolves in a highly expansive fashion. And, exercising caution regarding unrealistic expectations about quasi-deterministic judicial law-making, it is found that the Court’s constitutionalised jurisprudence impacts heavily on European and member state policy-making.     

The identity of ‘the other’ for sexual violence victims: is there anything new in sexual violence prosecutions before the International Criminal Court?

Despite the spectacular development in the field of international criminal law, critical feminism stresses the narrow scope of the sex and gender crimes in the Rome Statute establishing the first permanent International Criminal Court. The current international criminal law discourse, as expressed by recent case law, is geared towards the protection of certain groups targeted on account of their distinctiveness within the framework of a conflict situation, and gender is not recognized as one of these group identities. The question whether international criminal law on sexual violence applies only to inter-group conflicts brings to the fore an uneasy likelihood of exclusion of some recently emergent situations where identities of the conflicting parties transcend a particular ethnicity or nationality, and where victims of sexual violence belong to the same group as their perpetrators. The article argues that, rather than the Rome Statute or newly introduced rules and regulations, a significant obstacle in developing gender justice is the narrow interpretation of sexual violence to inter-group hostilities.     

How Expected Political and Legal Impact Drive Media Coverage of Supreme Court Cases

Media coverage of Supreme Court decisions is not well-understood, with studies typically focusing on features of decisions such as issue area and opinion authorship, and ignoring the political and legal importance of those decisions. Because the Court is both secretive and esoteric, and because it does not engage in traditional public relations activities, media must proxy importance by looking to available cues, such as interest group participation. Importantly, some indicators of importance are available before a decision is rendered; thus I examine both pre- and post-decision media coverage of cases. I show that expected legal and political impact drive media coverage of Court decisions, and that the decision-level features that prior studies have focused on are much less important in determining coverage than has been previously thought.     

论强制程序条款下辩方证人出庭

对质条款和强制程序条款作为保障被告人权利的重要条款,是证人出庭的两条基本依据。目前刑事诉讼领域的立法和实践主要聚焦于对质条款下的证人出庭,对依据强制程序条款下的证人出庭程序缺乏足够的重视,使得对质条款和强制程序条款的平衡性丧失。辩护律师依此条款申请辩方证人出庭,人民法院认为确有必要的应当同意;证人可以主张不得强迫自证其罪特权,但不能以近亲属特权、律师当事人特权或者国家秘密作为拒绝作证的理由;对拒不出庭或者出庭后拒绝作证的可以强制到庭和司法拘留;增加规定携带证据到庭的通知书等。     

Echoes of domestic silence: mechanisms of concealment in cases of ‘Family Honour Killings’ in Mandate Palestine

This article deals with the manner in which family and community in Mandate Palestine attempted to keep the criminal justice system from intervening in cases defined as ‘Family Honour Killing’. Drawing on criminal court cases, we argue that the familial, domestic and communal features of this crime and its social, predominantly rural, context were critical for the attempts to keep it within the community and to prevent state intervention by obstructing, concealing and denying evidence. We focus on the mechanisms used by members of the family and community for that purpose. Our case study is in line with previous findings indicating the under-reporting of domestic violence, especially when witnesses were closely related to both the victim and the perpetrator. This domestic and communal alignment was most likely reinforced under colonial rule, though it was not necessarily caused predominantly in opposition to it.     

中国戒毒体制的演变历程和模式比较

中国禁吸戒毒工作历史可圈可点,自清朝雍正时期颁布世界上第一个禁烟诏令开始,中国的禁毒立法和禁吸戒毒工作历经了清朝、民国、新中国成立之初和改革开放至今几个演变发展时期,戒毒模式也在不断完善。本文对中国几个不同历史时期的戒毒工作进行了梳理,更加凸显出中国现行戒毒体制的特点和优势。提出进一步探寻完善《禁毒法》中戒毒体制的方法和思路。     

论国际刑事法院与其他国际机构的关系

国际刑事法院是一个追究个人刑事责任的常设性国际刑事司法机构,它既不同于只处理国家间争端的国际法院,也不同于安理会特设的几个国际刑庭。其补充管辖原则表明,它对国内法院起着补充作用而不是优先于国内法院行使管辖权。国际刑事法院与联合国安理会是合作与协调的关系,但规约第16条规定安理会以通过决议的方式要求法院推迟调查和起诉这个机制存在很大的缺陷,它为政治干涉司法提供了方便之路。     

雷经天新民主主义司法思想论

雷经天的司法思想是新民主主义司法思想的典型体现。苏维埃司法的政法传统、边区司法正规化改革思想及马克思主义理论的中国化潮流是其思想的主要来源。围绕新民主主义司法观，雷经天提出了在司法组织上贯彻民主集中制，在法官队伍建设中加强工农干部与知识分子干部的融合，在六法全书援用中将政治立场与司法实践适度分离，在司法程序中坚持司法民主、发展司法便利等系列观点。其思想贯穿着革命性和实践性思维的特点，是时代背景与个人经验综合作用的产物。     

宪政民主还是民主宪政?——试论美国最高法院与民主

宪政和民主是现代政治体制中相辅相成的两个部分,如果说民主是河,宪政则是堤。为了限制民主的冲动性与盲目性,美国人制定了成文宪法,在代表制基础上实现了宪政民主。与国会、总统一样,美国最高法院也是民意代表,只不过更为间接和持久。通过解释宪法,美国最高法院不断修补宪政之堤,在尊重民意的基础上引导民意,将宪政民主转向民主宪政,维护了自身的地位与权威。     

U.S. CLS

This essay offers a brief account of the rise of cls thought in the United States and of its development within a largely hostile legal academy. As the essay suggests, cls thought has been variously deformed, arrested, normalized, and diffused – leaving the contemporary American legal academy in a state of suspended animation. This revised version was published online in July 2006 with corrections to the Cover Date.