The Predicament of Modern Law: Parker's History of a Law Without a History that Matters

Kunal Parker's Common Law, History, and Democracy in America, 1790–1900: Legal Thought Before Modernism shows how nineteenth‐century thinkers thought about law and history differently than do post‐Holmesian modernist sociolegal scholars, whose ahistorical law appears contingent on politics, power, or will. Understanding time and history to be essential to law, nineteenth‐century jurists conceived of a common law that was able to work with and to shape democracy, Parker argues. Contra modernist histories then, Parker claims that the common law was not a reactionary force that stood in the way of democracy and economy. His history of legal thought before modernism suggests, further, the predicament of antifoundationalist modern law and modernist scholars: stripped of time and without its own history, how can law be anything other than politics, power, or will?     

Megan's Law: Crime and Democracy in Late Modern America

To an unprecedented degree American society at the turn of the twentieth century is governed through crime. Nearly three percent of adults are in the custody of the correctional system. Crime and fear of crime enter into a large part of the fundamental decisions in life: where to live, how to raise your family, where to locate your business, where and when to shop, and so on. The crime victim has become the veritable outline of a new form of political subjectivity. This essay explores the complex entanglements of democracy and governing through crime. The effort to build democratic governance after the American Revolution was carried out in part through the problem of crime and punishment. Today, however, the enormous expansion of governing through crime endangers the effort to reinvent democracy for the twenty-first century.     

The Consequences of Culture: Legal History,Labor Law,and the Contributions of Christopher Tomlins

This article reviews three books on labor law written by Christopher Tomlins. They are, in order of publication, The State and the Unions: Labor Relations, Law, and the Organized Labor Movement in America, 1880–1960 (1985); Law, Labor, and Ideology in the Early American Republic (1993); and Freedom Bound: Law, Labor, and Civic Identity in Colonizing English America, 1580–1865 (2010). Tomlins has been an influential figure in the movement known as “critical legal studies” and has helped shape a new approach to the field of labor history, labor law, and the study of US workers. Over the span of twenty‐five years, Tomlins's research has been central to evolving theories of law and social interaction and has continuing relevance to more recent scholarly developments such as the field of “cultural cognition” studies.     

穿行于法律与人类学之间——西方法律人类学的历史、现状及趋势

法律人类学(legal anthropology)属于一个跨越法学与人类学的交叉学科领域。相较于其他社会科学而言,人类学是一门相对晚近的学科,主要包括体质人类学、文化人类学以及考古人类学等分支。目前,人们通常所说的人类学主要是指文化人类学,具体而言,就是通过采用整体的、跨文化比较     

侵权法的经济学理论：一个思想史的札记

"法律与经济学"理论运动在40多年的时间里成为当今美国主流法学流派之一,这在法律思想史上实属罕见。法律与经济学对法学和法律的冲击是全方位的,通过以"思想史的角度"对法律与经济学之"侵权法理论"展开讨论,重点表现在科斯的成本理论、卡拉布雷西的规则理论和波斯纳的侵权法经济分析理论。     

Beyond Consensus: Law, Disagreement and Democracy

Nowadays democratic liberal societies face a rising challenge in terms of fragmentation and erosion of shared values and ethical pluralism. Democracy is not anymore grounded in the possibility of a common understanding and interpretation of the same values. Neverthless, legal and political philosophy continue to focus on how to reach consensus, especially through monist, objectualist, contractualist, discursive and deliberative approaches, rather than openly affording the issue of disagreement. Far from being just a disruptive force, disagreement and conflict are matters of fact that no reflection on democracy can underevaluate. They are the major issues through which to look at the intersection of law, politics and morals. The inclusion of dissent is a powerful tool for moral recognition of different understandings of justice. That is where legal procedures become crucial. Law is a fundamental element in the building of a democracy. But it is also particularly exposed to disagreement. Language indeterminacy, dogmatic concepts and value pluralism constitute the main elements that lead to alternative and conflicting interpretations of law in a democratic framework. Major legal progress in the past has come from different understandings of the same legal materials. In this article I argue that respect for disagreement should be a moral principle in democracy and that the role of legal disagreement is essential to understand the evolution and the future directions of democracy as the government of a political community. To do so, a link between respect for disagreement and legal interpretation and argumentation must be established in order to make room for reason and avoid extreme skepticism on the contribution of law to the enforcement of democracy.     

The Legal Discourse of the Common Law: A Game of Chess

English law, like any otherspecialized topic, needs a particular languagefor its understanding. The legal discourse ofthe common law gathers a set of theoretical andcustomary mechanisms subject to internal orexternal intrusions into its directions foruse. Two ideas are highlighted: the rigidity ofthe overall regulating structure of the law,and the use of `fuzzy sets' to provideflexibility to legal discourse. This unsteadyor fuzzy discourse production proves thislanguage to be the result of a long and complexhistorical process of socialisation. Theseinteractions of reference and of wordinglegitimate a mode of precise and technicalinstitutional stratification, combining bothconstruction and argumentation.     

Toward a New Legal History of Capitalism and Unfree Labor: Law,Slavery, and Emancipation in the American Marketplace

New work on the “history of capitalism” reveals how the personal freedom enjoyed by people living within the liberal capitalist mainstream is often purchased by coerced labor at the social margins. Walter Johnson's book River of Dark Dreams: Slavery and Empire in the Cotton Kingdom makes this argument with force, utilizing the concept of “slave racial capitalism” to suggest how race‐based slavery constituted a necessary component of early American economic expansion. Using Johnson's framework as a starting point, this essay argues that the legal institutions of property and contract, institutions underwriting a genuinely “slave racial capitalist” regime, also contained certain subversive possibilities within themselves, eventually challenging unfree labor as a modality of rule within the modernizing United States.     

法律文明的起源——一个历史学、考古学、人类学和法学的跨学科研究

在描述法律文明的起源时,由于文字尚未诞生,因此仅凭法学的文献是不够的,必须借助历史学、考古学、人类学的成果。在此基础上,对人类经历的游团、部落、酋邦和国家四个不同阶段法律的萌芽、诞生、成长和发展等起源过程进行探讨,是法律史研究的重要领域。而存世之传说(神话),出土之遗存,尚存之原始部落人群的生活调查,以及从最早的文字记录下来的习惯法汇编文献中,逆向往前追溯这些习惯更早的形态,来梳理人类法律规范的起源等研究方法的综合运用,则构成了我们了解、把握法律文明的萌芽、诞生、成长和发展的基本路径。     

Law against the Rule of Law: Assaulting Democracy

This article examines how authoritarian contenders use law to advance an agenda geared to exclusive state power in light of a paradigmatic case: the National Socialists’ takeover of the German state apparatus in spring 1933. This case highlights two ways in which an office holder is able to expand his power in an authoritarian fashion through legal dispositions. A conjunctural use of law for authoritarian purposes draws on legal statutes to undercut the political capacity of opponents and competitors, hollow out institutional checks, and crucially hamper civil freedoms. Taking advantage of constitutional provisions that make institutional subversion from within possible (‘constitutional Trojan horses’), a structural use of legal statutes reorders the power structure by reallocating decisional rights. In both cases, law serves as a weapon against the rule of law. These considerations raise the question of the standards by which we are to judge the legality of such acts. Contemporary instances of democratic backsliding are cases in point.     

民主与法制：邓小平的依法执政思想探微

邓小平法制思想是邓小平理论宏大科学体系的重要组成部分。在建设有中国特色社会主义理论的创造中，邓小平坚持解放思想、实事求是的思想路线，不断地从实际出发，提出了一系列充满时代特征的法制思想，鲜明地提出了加强法制建设的一系列基本问题，提出了新时期法制建设的主要任务，深刻地论述了民主与法制的统一对提高党的执政能力、依法治国的重大意义。邓小平的法制思想，内容丰富，博大精深，是当代中国民主法制建设的指导思想，是中国建设社会主义法治国家的根本方针。     

中华法系与世界主要法律体系——从法系到法律样式的学术史考察

法系论自穗积陈重提出伊始,就存在着对世界法律体系划分标准不一的困难。本文通过学术史的考察认为,以往的中华法系研究基本上没有跳出法系论的框架。事实上,中华法系研究不仅是印证法系论的个例,更孕育着比较法研究开新的学术价值。武树臣教授从中国法律研究中提炼出法律样式的学说,为重建中华法系和再造比较法的奠定了新的范式基础。     

法律行为理论在欧洲私法史上的产生及术语表达问题研究

法律行为理论在欧洲私法史上产生的前提条件是中世纪社会组织和经济体制的转变,要求在法律上承认个人自主决定其法律领域。法律行为理论的产生,就其实质内涵而言,受到意志论的法学思想的影响;就其形式角度而言,受到欧洲近代法学对人类行为所具有的法律意义的理论分析的影响。在法律行为的概念表述上,存在德国式的二元术语体系与法国式的一元体系的区别。中国应该采用二元术语体系,以“法效行为”指称“一般意义上具有法律后果的行为”,以“法律行为”指称“产生行为人的意志所欲求的法律后果的行为”。