The Semiotic Fractures of Vulnerable Bodies: Resistance to the Gendering of Legal Subjects

While the turn to vulnerability in law responds to a recurrent critique by feminist scholars on the disembodiment of legal personhood, this article suggests that the mobilization of vulnerability in the criminal courts does not necessarily offer female drug mules a direct path to justice. Through an analysis of sentencing appeals of female drug mules in England and Wales, this article presents a feminist critique of the dispositif of the person and its relation to vulnerability. Discourses on drug mules’ vulnerability mobilize the trope of the colonial victim in need of protection, which is often translated into legal mercy. But mercy is rather an expression of biopower which inscribes not only fragility onto the bodies of drug mules by figuring them as exemplar paradigms of colonial subjectivity, but also reinvigorates the dispositif of gender implicit in the legal person. In this set-up, it would appear as if law and politics totalize the registers of life, in this case the contours of vulnerable body. The article suggests we must revisit the image of the wounded body in order to carve out a space for resistance. Drawing on Elaine Scarry and Judith Butler, it suggests vulnerable bodies are marked by a semiotic openness, which renders them subject to appropriation but also able to signify the precarity produced by the law through their resistance to representation.     

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。     

On the Use of Law in Transatlantic Relations: Legal Dialogues between the EU and US

Law plays a significant role in contemporary transatlantic relations outside of the bilateral context which, from the perspective of EU external relations law, might seem neither conventional nor apparent. Non‐bilateral transatlantic relations increasingly deploy law as a communication tool between the two legal orders. For example, in 2011, the US intervened informally and anonymously in the formulation of EU legislation, while the US House of Representatives passed legislation to prohibit the impact of EU law upon the US legal order. Another example is constituted by EU amicus curiae submissions before the US Supreme Court in death penalty cases. The so‐called Brussels effect is also the subject of recent scholarship, assessing the perceived spillover effect of EU regulatory standards onto US rules. The paper provides many vivid examples of the variable institutional and legal components of transatlantic relations not usually accounted for in scholarship on transatlantic relations.     

A Genre-based Approach to the Translation of Private Normative Texts in Legal English and Legal Spanish

This paper aims at clarifying some of the most common issues that legal translators have to face when dealing with the translation of private normative texts, such as contracts or wills, which naturally emerge as the consequence and expression of legal or juristic acts in the scope of private law, in Spanish and English. To comprehend the differences and subtleties regarding legal communication between the common law and the continental law countries (specifically the United States and Spain, respectively), we must unveil some essential clues for their translation and application in the global scope of professional interactions, thus creating a process of inter-legal communication, which takes place through the mutual interpretation and application of two, or more, legal traditions. Through the deployment of a generic or pragmatic analysis at textual or discursive and formal or superficial, strata, of two types of genre within the domain of private law (namely wills and tenancy agreements, or leases) this work aims to prove that both the civil law and the common law private instruments are translatable with respect to each other. An important proviso, however, is that their legal traditions and the genres that constitute the communicative tools of their specialised communities must be duly respected and kept in equilibrium, so that one does not overshadow and obliterate the other. Only in that way can the ??convergence?? of the two traditions truly enrich and strengthen national and international legal culture.     

Creating Legal Space for the Unborn

This article explores how the unborn moved from inhabiting an implicit mother-centric space, tacitly expressed in the Irish constitutional order, to a separate legal space created first by the Eighth Amendment and later through public discourse, judicial interpretation and failed constitutional referenda. The article opens with a brief examination of the relationship between law and space in recent scholarly works. It goes on to assess the impact of post-colonial and gender discourse in producing the first legal space in which the unborn was tacitly understood. This is followed by an exploration of how cultural and gender rhetoric gave birth to a definite legal space in which the right to life for the unborn was protected by the Constitution and the government’s subsequent attempts to solve the legal limbo by shifting the debate to the social policy space. The paper concludes by discussing the extent to which a wider, more universal space, that of human rights discourse, may have an impact on the legal space created for the unborn, by either protecting or weakening its right to life.     

论我国紧急状态法制的实现条件与路径选择——从反思应急法律体系切入

紧急状态法制对于解决宪法上紧急状态制度的虚置问题,推动应急基本法的结构性调整,填补应急法律体系中的制度断层,提升其体系内部各个层次、各个相关条款之间的融贯性,有着十分紧迫的现实意义。经过理论条件和现实障碍的细致论证,可以推导出我国紧急状态法制的实现条件极为特殊,寄希望于短期内制定一部统一的《紧急状态法》似乎不具备可行性。从完善应急法律体系的整体考量,可以将紧急状态法制的任务一分为二,按照实体分散和程序统一的思路分别展开实质性构建,同时发挥“情境化”规范进路的聚合效应,打破分散的形式结构体系,在超常规应急治理(紧急状态)情境中实现规范内容的实质统一。     

Brazilian Legal Culture: From the Tradition of Exception to the Promise of Emancipation

This article investigates the existence of an original Brazilian legal culture. It parts from a critical examination of the key moments in the history of Brazil through the accounts of its most important scholars, such as Caio Prado Júnior, Darcy Ribeiro, Sérgio Buarque de Holanda, Wilson Martins, Oliveira Viana, Roberto Damatta, José Murilo de Carvalho, among others. It identifies in the Brazilian legal culture something one might call tradition of exception, which can be found in many of its most prominent aspects, such as the persistent denial of any general or abstract regulatory standards, the uncritical introduction of foreign doctrines and legal patterns, the maintenance of aristocratic traditions in social life and the historical disregard of the Brazilian people as political subject. The article also offers a reflection on the problems and potentials of the current historic moment, in which for the first time Brazilians face the possibility of a genuine cultural emancipation.     

Legal technology in contemporary USA and China

The US and China are two typical models that present legal tech trends that are common world over. In China, robust regional models of intelligent judicial systems have emerged alongside some common applications that include the same-type case referencing, automated sentencing decision, uniform standards of evidence, and judges’ data profiling systems. In the US, legal tech refers to artificial intelligence in domains such as innovative legal research, predictive litigation analysis, e-discovery, and contract review.The common elements in the development of legal tech in both countries are useful for other countries to understand. However, the legal tech in both countries has distinct characteristics, as seen in their different driving forces, target groups and purposes. The characteristics of legal tech are heavily related to each country's political background, legal system, and judicial structure. The different paths taken toward legal tech also remind us to reflect on the mistakes made and to explore some experiences pertaining to developing legal tech. For the strategic deployment, it is reasonable to apply cutting-edge technologies to the legal field until they are truly matured, and combine the top-level design with local pilot projects. For the target groups, litigants and vulnerable groups should not be neglected in legal tech service provision. For the purposes, machines should play an auxiliary role rather than replace judges altogether.     

Legal Entrepreneurship and the Strategic Virtues of Legal Uncertainty

The field of law and strategy (LAS) has advanced our understanding of the law's role in competitive advantage. To date, however, LAS has neglected low rule of law environments—countries characterized by expansive degrees of legal uncertainty. LAS should account for these settings, too, since environmental uncertainty is a strategically significant factor for any company. This article situates the strategic relevance of legal uncertainty in the Chinese context and fills an important gap by illustrating how LAS principles apply in low rule of law jurisdictions. Specifically, this article develops the construct of legal entrepreneurship—the notion that attorneys may apply an entrepreneurial mind-set and skill set to position the client favorably and legitimately within the uncertainties of the legal landscape, thereby creating legal competitive advantages for the client. Drawing upon interviews with expert attorneys and executives, this article presents a typology of legal strategies available to U.S. companies in China, uniquely modeling these approaches along the two fundamental dimensions of legal strategy. Additionally, this article identifies two basic types of legal uncertainty in the cross-border context and offers guidelines for the exercise of legal entrepreneurship. Together, these arguments demonstrate that legal entrepreneurship is an empirically viable construct within the LAS project. In low rule of law jurisdictions that have embraced foreign enterprise, legal entrepreneurship will generally optimize the American company's pursuit of both legal value creation and legal risk management.     

方法、思路与问题——评《中西法律文化比较研究》(第三版)

以《中西法律文化比较研究》一书为例,探讨研究者如何从类型学的角度比较中西法律文化,指出其成功之处在于揭示了两种文化的类型特征,局限在于忽略了研究对象的复杂性,并为完善这些类型提供了思路;接着指出研究者在寻求中国传统法律文化与现代法制的联系时所怀有的是一种理解与沟通的心态,并对其观点和论据进行了分析与批判;最后清理了研究者运用中国古人的世界观会通中西法律文化的思路,从中探寻研究者从激进主义向文化守成主义转变的现象和原因。     

法律发展与法律知识化

法律发展首先必须面对合法化与价值诉求问题，而这一切又无不与作为基础的法律主体的知识立场密切相关。如何谋求“法律知识化”、话语合法化以及法律主体的价值立场的有效运作，是法律文明、有效发展的必要途径，也是法律发展话语摒弃规则主义弊端制约而建构自我所不可回避的挑战。从西方国家的经验看，现代法治的确立与以理性化为核心的法律知识化过程密不可分，法律知识化由知识对法律的关系提升、扩展为一种法律观，再由一种法律观落实为一种价值观、方法论，并由此引导法律主体追求和建设一种新的法律文明。更为重要的是，“法律知识化”使法治成为近代法律发展的本质性，把知识化原则导入法律发展领域，从而实现了法律发展的革命性变革。     

His Dark Legalities: Intellectual Property’s <Emphasis Type="Italic">Psychomachia</Emphasis> in Philip Pullman’s <Emphasis Type="Italic">His Dark Materials</Emphasis> Trilogy

This article will explore the vastest, most terminal, and—at least in the natural law tradition–most legal of spaces: namely, the home of the divine sovereign, Heaven. Specifically, I am interested in the contemporary (re)depiction of heavenly space as a ‘Miltonic’ theatre of war, as represented in Philip Pullman’s fantasy trilogy, His Dark Materials. This spatial mise-en-scene, as spectacular as it is, is a peculiar choice for an avowed atheist and anticlerical like Pullman. For it would seem to confirm than confront the verities of theology and the very structures of belief that Pullman seeks not only to critique but to overthrow. Namely, that Heaven exists, though as an absolute monarchy rather than (as Pullman plugs for) a republic. I will argue, however, that Pullman’s neo-Blakean vision of Heaven-as-Hell (ruled over by the tyrannical Metatron, as regent for a senescent ‘Authority’, i.e. God) is a metaphor: a metaphor for legal rather than theological space. And the legal space that Pullman metaphorises, I will argue, is nothing less than the imaginary of millennial intellectual property rights, an ideo-juridical inner space more and more projected upon and underpinning spatial notions like the ‘Commons’. The war in Heaven, then, is an elaborate allegory for struggles over the contol of knowledge under the conditions of Global Capital, with Lord Asriel, Lyra and Will functioning as Lessig-style activists, colonizing the new technologies (anachronised here as ‘amber spyglasses’, ‘subtle knives’, ‘alethiometers’ etc.) to topple ‘The Authority’ of intellectual property law and institute a democracy of digitality in which ideas are free to circulate in that most unreal and Real of spaces, the internet.     

War as an Institutional Fact: Semiotics and Institutional Legal Theory

In institutional legal theory, norms and facts are reciprocally operating elements: an interplay in which meaning construction is closely connected with acting: the pragmatic understanding of legal language in terms of its uses. With the semiotic elements of institutional theory, extended by the notion of ‘semiotic groups’, an analytical framework can be constructed to analyze a case study on the shifts in the concept of war which have taken place since the 1945 UN Charter and in the aftermath of 9/11. The semiotic aspects of the institutional approach can offer insight into the complexity of the processes of meaning attribution in the field of law and war.

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视域融合的法哲学的现实分析

在现代法哲学的范式里,作为法律解释者的主体和作为法律文本的客体是分离的,这种二元结构使法律的权威得到了保证。而有的法哲学家认为,主体和客体之间只有相互沟通,才能防止一种价值压制另一种价值,所以视域融合的法哲学应当有更大的生存空间。但在我国目前的语境下,这种法哲学却可能使法律的王国支离破碎并削弱人们对法律的信仰,或许我们需要的是现代性而非后现代性的法律。     

Postmodern Professions? The Fragmentation of Legal Education and the Legal Profession

This article considers the institutional dimensions of professionalism and the legal profession's struggle with the challenges of post-modernity. An aspect of this is the Law Society's Training Framework Review (TFR) which promises changes to solicitors' education from 'cradle to grave'. The first part of the article analyses the structure and drivers of the TFR, their origins, and how they will be articulated. Secondly, the TFR is considered in the context of the political economy of higher education and its role in the new capitalism. Finally, we examine the potential effects of the TFR for the legal profession in the context of increasing practice segmentation and the threat of deprofessionalization, and also for the Law Society itself, whether it can retain a key role in the life course of the legal profession.     

融贯性与法律体系的建构——兼论当代中国法律体系的融贯化

法律体系的融贯性具有重要意义。它意味着法律体系各个部分之间的相互支持与证立,这是对于法律体系的道德要求,也是法治的目标之一。法律体系的融贯性具有程度差异,它包含连贯性、体系融贯性与理念融贯性三个层次的要求。融贯的法律体系主要是裁判者的诠释活动带来的,它是借助于一定的诠释方法建构出的产物。当代中国法律体系的融贯化面临特殊的难题,只有从制度体系、背景体系与方法体系三个方面努力,才能建构出满足三个层面融贯性要求的法律体系。     

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.     

The Continuing Relevance of Ars Poetica to Legal Scholarship and the Modern Lawyer

In this late modern era within which the basic values of life have been reordered (driven by globalisation, the corporate agenda and mass communication technologies), the individual has effectively been reduced to a mere abstraction. It might be argued that the rational, moral and humanistic concept of freedom has, to a great extent, been compromised by a consequent crisis within the intelligentsia. These groups, in particular the gatekeepers of a classical liberal approach to legal scholarship, are caught between the twin evils of increased unreflective populism and pragmatism evident within many law schools and modern legal institutions. Although a contested term, defenders of the ‘socio-legal’ tradition, who place the humanities at the heart of legal research and education, are obliged to restate with increased determination the utility of the liberal arts and literature to the law profession and wider legal community. In a normative environment, law and narrative are inextricably linked and narrative poetry is not only invaluable to explaining the origins and location of the legal tradition, but also elicits a mode of understanding which transcends the boundaries of narrowlydefined legal hermeneutics—which often only addresses issues of an operational nature. French novelist Flaubert claimed “chaque notaire porte en soi les débris d’un poète” (Flaubert in Madame bovary (trans: Wall, G.), Penguin Classics, London, 1960: 269), paraphrased by American civil rights lawyer, Clarence Darrow, as “inside every lawyer is the wreck of a poet” (Lukas in Big trouble: a murder in a small western town sets off a struggle for the soul of America, Simon & Schuster, New York, 1997: 323). In an age of disenchantment, this paper explores the poetic form as an important medium within which to understand the nature and function of law in a society of differentiated individuals.     

新冠疫情视角下生物技术风险化解与法律规制

生物技术风险应对必须走到科技的前面去,在风险预防的基础上审慎推动新冠疫情防治生物技术的发展创新;对生物安全威胁的防控更应走到法律的内部去,在法律规范下妥善处置新冠疫情中的生物技术风险.重塑发展生物技术的原则和态度,防范和化解生物技术应用产生的阴霾,创设适宜的生物技术生长的法治空间,实现在法律规制下的生物技术与人类社会的...