Court politics in a federal polity

This article uses a case study from Queensland to demonstrate the court politics approach's potential to reinvigorate executive studies. Court politics focuses on webs of interdependence within the core executive. It examines the beliefs and practices of elite actors and their fluid and contingent relationships. This article examines the patterns of executive politics that prevailed under Premier Anna Bligh. It seeks to answer three key questions. First, why is court politics a useful approach to studying the Australian core executive? Second, what is the nature and extent of court politics in Australian state governments? Finally, recognising that local traditions shape the beliefs and practices of political elites, how does the court politics approach need to be modified for application in Australia?     

Right-Sizing International Criminal Justice: The Hybrid Experiment at the Special Court for Sierra Leone

In the decade since their establishment, the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) have made great advancements in the development of international criminal justice. Nonetheless, the ad hoc tribunals have been roundly criticized for their expense, inefficiency and slowness. When the Security Council decided to set up a court for Sierra Leone, it wanted to find a new model. The hybrid Special Court for Sierra Leone (SCSL) is an effort to right-size international criminal justice: it has a pared-down budget, tightly focused mandate, limited time of operation, and a lack of institutional links to the Security Council. The negotiations over these issues led to repeated clashes between the UN Secretary General and the Security Council, with the Security Council consistently favouring a more modestly sized court. The SCSL has much to recommend it but its promise is shadowed by the paltry resources available to it. In its efforts to avoid creating another over-sized tribunal, the Security Council swung too far in the other direction. The lofty goals of ending impunity and providing justice demand more than a court on the cheap.     

金文所见商周逢国相关史实研究

20世纪七八十年代,在山东济阳姜集乡刘台子墓地相继发现并发掘了几座西周时期墓葬,发掘者对其年代与族属进行了考订,初步认定该墓地属文献所载姜姓逢国所有。随后,有学者对其中几座墓葬的年代与墓主身份作了进一步讨论,商周逢国的历史问题也不断受到关注。然而,     

The Preemptive Power of State Supreme Courts: Adoption of Abortion and Death Penalty Legislation

We offer a theory about public policy adoption that depicts a game between state supreme courts and state policymakers. We hypothesize that court ideological hostility or friendliness operates to discourage or encourage policy enactment, with the likelihood of subsequent court intervention magnifying the relationship. To test the argument we examine the influence of court ideology on the enactment of state abortion and death penalty laws since the 1970s. Empirical analyses provide strong support for our theory, indicating that court ideological hostility or friendliness significantly influenced state abortion and death penalty policy enactments. In addition, the likelihood of court intervention conditioned this relationship, with the most pronounced effect occurring where subsequent court review was mandatory. The findings reveal courts exert important preemptive influence on law without hearing a case. This facet of judicial influence expands the traditional view of actors involved in the policymaking process.     

明代兵备道驻地选择机制探析——以郴桂兵备道为例

明代兵备道最初因弹压动乱而设,具备鲜明的军事特征。明中期后,为集中权力、增强对地方控制,明廷将兵备道与分巡道大量合并,致其于治乱之外渐具行政、监察等其他职能。目前学界将兵备道多驻于动乱或冲要之地归因于其治乱之职能,这其实是一种误读,忽略了兵备道本质上并非单纯的军事单位,而是重要的地方治理机构。以郴桂兵备道为例,梳理其由设立至嘉靖年间与分巡上湖南道的合并,再至万历时驻扎方案确定的过程,可知兵备道驻地选择与明廷地方治理策略密切相关。该策略转变下的兵备道职能拓展、巡抚间博弈等因素,对兵备道的驻地选择产生了重要影响。     

15-16世纪欧洲集市的转变——以尼德兰集市为例

在中世纪欧洲商业复兴的背景下,城市的政策是促进集市繁荣并向交易所转变的重要原因。城市当局保障各地商人享有平等的经商权利,建立相关的法律制度并使之不断完善,在生活和宗教活动等方面提供方便,以此吸引国内和外国商人。近代领土国家和中央政府的形成进一步促进了商业制度的成熟。地方政府和法庭为商业发展制定的政策较国家政策更加细致,在集市向交易所转变过程中的作用更为明显,尼德兰集市即提供了一个较佳的例证。     

民初惩罚女性性犯罪的法律问题

民国初年,国家对女性性犯罪的惩罚较前有所减轻。大理院通过一系列的解释例,对女性的通奸、重婚等性犯罪行为进行了相应的界定,强化女性性犯罪的告诉权;强调"无告诉权不理"、"律无处罚正文,即不为罪"等办案原则,对女性的性犯罪案件进行相应的宽宥处理。但在法律解释及司法实践中,北洋政府却也加强了对女性性犯罪的严格控制。     

State Ceremonial,Court Culture and Political Power in Early Modern Denmark, 1536-1746

In early modern Europe the court of a prince was many things: the household of a prince, a point of contact between the ruler and the elites, a cultural trendsetter, a focal point of patronage and an important institution of regional and international politics. In short, the court had many functions. In this article the focus is on the main lines of development in the court culture of early modern Denmark, from the Reformation (1536) until early Absolutism. Certain structural changes are highlighted and an attempt is made to explain them in political terms. As a prelude, I offer some theoretical reflections on the meaning of court culture in general and ceremonial culture in particular. Let me say from the outset that I have found my inspiration mainly in German and American historical scholarship, which for the past twenty years or so has witnessed a continuous and fruitful debate on the early modern court.     

The Politics of Judicial Selection

Some of Stuart Nagel's earliest work has a continuing significance to research on the selection of state court judges. His research provides answers to why partisan election of judges, in spite of the flaws of this selection system, remains a major system for selecting state court judges. And Nagel's early research offers important insight about contemporary issues in the selection of judges such as the differences between elected and appointed judges and the role of race and ethnicity in judicial decision-making.     

Adversarial Map-Making in Pre-Reformation Lancashire

Abstract

'Adversarial Map-Making in Pre-Reformation Lancashire'. A map in the National Archives dated to 1531 showing part of the Fylde in Lancashire has been published on several occasions; but its relationship to another map in the National Archives has not previously been recognised. These two maps were made by the opposing parties in a dispute before the court of the Duchy of Lancaster, and may be the earliest examples of adversarial map-making in a case before an equity court. The case concerned land which had apparently long been regarded as intercommon, but which was now being claimed to be in exclusive ownership. The newly recognised map was made to illustrate recently acquired documentary evidence as to the ownership of the land in question. This map appears broadly trustworthy, and was accepted as such by the court; but the defence map seems rather to have been designed to mislead. In recent years the defence map has been regarded as evidence for the appearance of the locality concerned in the 1530s, but this study shows that it was in fact regarded by the court as unreliable, thus highlighting the need to treat all maps other than those actually commissioned by the courts themselves as partial and therefore suspect.     

Back in their proper place:: racial gerrymandering in Georgia

During this decade the United States Supreme Court has made significant rulings on constitutional challenges to representative districts purposefully drawn to empower minorities as district majorities. Arguments have set the Voting Rights Act against the Fourteenth Amendment's goal of a colorblind society. The court has generally struck down the aggressive drawing of majority–minority districts, finding them racial classifications not narrowly tailored to achieve compelling state interests. This study analyzes and evaluates these legal developments, principally through a focus upon the most recent litigation in Georgia. My thesis — that the Court has muddled the jurisprudence of representation, voting rights and racial equality because of its inability to treat politics and geography with consistency, depth, rigor and judgment — will be explored in connection with five questions. First, can compact and regular shape provide the courts with a concept to properly assess the legal issues without involving the courts in intractable and injudicious political questions? Second, does a bizarrely shaped district “broadcast” such an invidious racial message as to constitute a “stigmatic harm” which provides plaintiffs with standing to challenge the district? Third, is a district's bizarre shape critical evidence of the districters' intent to discriminate? Fourth, is “community of interest” a significantly richer criterion than shape for evaluating racial gerrymandering claims and defenses? Fifth, what is the proper legal role of traditional criteria of territorial representation as the benchmarks for distinguishing permissible from impermissible race-conscious districting?     

THE POLITICS OF COURT REFORM:d IN A NUTSHELL

State court reform is proceeding at an ever-quickening pace. A major theme is centralized state judicial leadership and management in court organization and funding, and improved methods for the selection and discipline of judges. Trends in court reform, groups supporting and opposing change and a brief evaluation of some court reform efforts are examined. Court reform is viewed as a political process.     

‘Your work is of no use to us…’: Administrative interests in ethnographic research (West New Guinea, 1950–1962)

Abstract

The extent of customary land in Samoa and the laws pertaining to its protection create a presumption of state dependence on the regulation of custom in effecting state policies within local contexts. The principal means of regulating custom in Samoa has been and continues to be through state court adjudication of conflicts over customary land and chiefly titles. The transitive nature of ‘custom’ and conceptions of ‘custom’ in Samoa created an opening for court influence in the construction of custom, if not custom's partial reinvention through the agency of the courts. This occurred principally through the courts’ privileging principles of English common law in confirming asserted land rights generally considered unenforceable at the time of Samoa's political partition. The courts re‐interpreted as customary, conceptions of land rights the colonial state's influence attempted to effect within Samoan society. But the source of the changes, and the courts’ role in promoting them, tended not to be equally reflected upon. To the extent such influence is ignored in analyses of Samoan land tenure and customary law, and reproduced within state policies and court adjudication of conflict, custom's social construction is left unexamined, assumed to be more general than it is, and likely to exacerbate tensions and conflict within Samoan society rather than reduce them.     

刑事审判监督程序存在问题的分析及改革策略

刑事审判监督程序是为了纠正错误的生效裁判而进行的特殊救济审判程序。我国法律对其规定虽有特色,但在许多方面尚不完善,其暴露出来的问题逐渐成为阻碍我国法制改革深化的因素之一。本文从提起再审的主体不当、再审的主体不当、再审的审理方式不当等几方面阐述在我国刑事审判监督程序中存在的主要问题,并针对这些问题提出当事人应该被列为可以提起再审程序之主体;再审应由原审法院的上级法院进行审理;法院应开庭审理,检察院派员监督等改革策略。     

Children accused of witchcraft in 17th-century Finnmark

This article deals with six children accused of witchcraft in the district of Finnmark, Northern Norway, during a witchcraft panic in 1663. Through a narratological approach, the article presents close-readings of court records, trying to detect the various voices heard in the documents: the voice of the accused person, the voice of the law and the voice of the scribe. The article draws attention to four points discussed within ongoing witchcraft research: the role of the scribe, the individualized character of the children's confessions, oral transference of witchcraft ideas and the speed of transmission of ideas about witchcraft. The analyses show that children confessed to similar demonological elements as adults, similarly seen in other European countries. The contents must be known before the children were brought before the court, as their answers to leading questions were detailed. The voices of the children are individualized, there is no indication that the confessions are constructions made by the scribe. The influence of specific persons had great influence on transference of demonological ideas.     

虢国考

虢国是西周初分封的重要姬姓国,汉以后的文献中记载了东、西、南、北和小虢五个虢国.依据历史文献和考古资料,我们认为周初周王所封只有二虢,一为东虢,一为西虢.由于西虢的东迁及其历史变迁,而有了所谓的五个虢国.     

试论清代皇帝明黄色朝袍的功用

在清代皇帝冠服中,明黄色朝袍的功用尤其引人关注。但是,长期以来人们对“朝祭所御”的概念往往含混不清,以至认为清帝明黄色朝袍既可亲郊飨庙又能御殿朝贺,模糊了朝服与祭服的区别。顺治十年(1653年)都察院左副都御史傅景星奏言:“自古帝王一代之兴,必有一代之制,黄帝尧舜垂衣裳而天下治。衮冕黼黻代有不同,朝有朝服,祭有祭服,所以肃臣民而格上下也……”。本文旨在讨论清帝明黄色朝袍的不同作用,从而区分出朝服与祭服的不同。     

Community regulation and its effects: the aggressive actions of parishioners against priests and women in Paris, 1483–1505

At the start of the sixteenth century, the archidiaconal court of Paris lacked centralised means of enforcement and relied heavily on parishioners to supervise one another and their priests. This article analyses cases from court registers dating from 1483 to 1505 that detail instances in which parishioners reacted aggressively to illicit contact between priests and women. It argues that the court appropriated parishioners' intimidating and sometimes violent separations of priests and women as a means to enforce ecclesiastical statutes calling for strict domestic segregation between the two. While the court relied upon the aggression of parishioners, it also protected priests, more than women, against extreme actions such as assault. The decisions made by the court created a system in which violence against women could be an acceptable means for enforcing its statutes at parish level.     

Reto's Chance: State and Status in an Urban Papua New Guinea Settlement

According to the ‘state‐in‐society’ model developed by Joel Migdal, states cannot be analytically regarded as separate from the societies they govern and have to be viewed in their social contexts. Migdal's model has been well received by scholars discussing governance and, especially, social control, in Melanesia. An anthropological qualification which could be applied to the model is that local elements of state in Melanesia are socially permeable, since their employees are likely to come from the communities they serve. This permeability arguably contributes to a mutually transformative relationship between state institutions and local groups whose praxis is informed by exigencies of kinship and community. Heuristically viewing the colonially planned ‘village court system’ in Papua New Guinea as an element of state in terms of Migdal's model, this paper presents a narrative of the appropriation of a village court into community sociality and individual aspirations for status in an urban settlement in Port Moresby. Ethnographically, it suggests that an application of the state‐in‐society model in the Papua New Guinean context, at least, must allow recognition of the way colonially and neo‐colonially introduced institutions have been appropriated into the praxis of local communities, and thus must preserve a sense of the transformations both of the institutions and the social life of those communities, to be analytically viable.     

论中英两国政府处理林维喜事件的手法与态度

鸦片战争前夕 ,英国水手在中国领土上殴毙林维喜。对此 ,林则徐根据国际法准则要求英方交出凶犯 ,据理力争 ,有理有节。而义律作为英国驻华的高级官员 ,其所作所为 ,背离国际法原则 ,藐视中国法律尊严 ,也使英国声誉受到严重损害。义律在林维喜命案中设立的法庭与所进行的审讯是非法的 ,他的裁决当然也是无效的。