INNOVATION IN THE ADMINISTRATION OF JUSTICE, 1969-1981: AN OVERVIEW

Innovation in judicial administration has proceeded slowly for many reasons. The attitudes of judges not-inclined by training toward management, the tradition of Judicial independence, and the separation of powers are examined as contributing factors inhibiting judicial modernization. Federal Judicial reform has defended historically upon the leadership of a Chief Justine of the United State? willing to use the office to dramatize and promote the issues. The most recent period of dramatic change in judicial administration, from 1969-1981, is reviewed with a focus upon the strategies for change employed by Chief Justice Warren E, Burger.     

南京国民政府时期边疆地区的司法改革及特殊政策论析

南京国民政府时期,当局尝试在边疆地区推行司法改革,但由于内忧外患导致司法资源不足而没有大进展。不过,基于适应边疆地区的特殊性与维护国家法制统一的考虑,有关各方围绕边疆地区的司法依据和法律适用、司法体制和法律组织以及司法人员职业化建设等问题进行了探索。但实施特殊政策,还不能满足边疆地区经济社会发展落后、少数民族生产生活方式特殊的客观要求,可谓提出问题有余、解决问题不足。     

Vengeance, justice and the reactions in the Revolutionary Midi

This article explores the nature of political conflict, violenceand justice in the Midi provençal during the French Revolution.It emphasizes the continuity of conflict between rival factionsdividing most communes in the region throughout the Revolutionarydecade, conflict that frequently issued in individual and collectiveviolence, most notoriously the prison massacres of the WhiteTerror (or the Reaction, as it was known among contemporaries)at Aix, Tarascon and Marseille in the spring of 1795. Thesemassacres, among the most spectacular expressions of collectivevengeance and popular justice in the Revolution, presented thenascent judicial system of the Revolution with some of its greatestchallenges in the pursuit and punishment of these crimes, notleast because of the political partiality of the judicial authorities.This article further illustrates how the phenomenon of multipleReactions between warring factions, representing fundamentalsocio-economic differences and competing visions of the Republic,provides an understanding of the whole Revolutionary processin the region.     

MEASURING JUDICIAL PERFORMANCE IN TRIAL COURTS: CONCEPTUAL,EMPIRICAL, AND POLITICAL PROBLEMS*

This article explores some of the issues associated with evaluation of judicial performance. It is argued that measuring judicial performance in trial courts, as the basis for subsequent evaluation, is fraught with problems of definition, counting and interpretation. These problems result from the diversity of judges' work in trial courts, uncertainty as to the importance of speedy resolution of cases and the political environment within which judging takes places.     

The Charms of Women and Priests: Sex,Magic, Gender and Public Order in Late Medieval Italy

How did judicial authorities in late medieval Italy understand the relationship between gender, sexuality, social status, magic and public order, especially when magic was used to facilitate the crime of adultery? What might this reveal about the intersection of gender, magic and public order in a place and time so fraught with political and social tensions? This study qualitatively compares four love‐magic trials from fourteenth‐century Lucca and suggests that the anxieties underpinning these trials were both particular to late medieval Italian communes and projected onto two populations, women and priests, whose unchecked sexuality posed the greatest threat to civic order. Historians examining gender in medieval European magic trials have often treated judicial officials’ anxieties as portents of the ‘witch craze’ of early modern Europe. Historians of medieval Lucca have tended to treat the political and gender histories of the city as largely separate. This article suggests that the courts’ increasing regulation of gender and sexuality in late medieval Lucca reflected larger ecclesiastical and communal concerns about the dissolution of civic order. In a world of civic power that increasingly belonged to secular men, the unchecked sexuality of women and clergy represented a dual threat to the stability of the family and, by extension, the city. This article argues that secular and ecclesiastical judicial officials feared not magic itself, but the ability of magic to invert power relations between men and women and between clergy and laity, destroying public order.     

北宋前期审刑院与宰相的司法复审权

审刑院设立于宋太宗淳化二年,罢废于神宗元丰三年,专门负责天下上奏的疑难案件的复审工作,是北宋前期国家最高司法机构之一。审刑院的设立,对宰相的司法权产生了很大的影响,双方对中央司法复审权的争夺十分激烈:在宋初,宰相拥有充分的司法复审权;太宗淳化二年审刑院设立后,宰相淡出司法复审领域,审刑院完全掌握了复审权;从仁宗中期开始,随着相权的整体攀升,宰相的司法权不断扩大,最终使审刑院由独立于宰相到沦为其附属。     

审判与调解:新中国成立初期的清理积案与制度选择

新中国成立初期,面对大量民事案件,司法机关一度认为造成积案的原因是暂时的,这些问题可以在短期内通过应急突击得到解决,司法机关对调解的态度一度也较为审慎。基于处理民事案件和清理积案的现实需要,司法机关围绕审判与调解主辅关系的制度安排进行了探索和选择。至20世纪50年代后期,“调解为主”的方针得以确立并趋于稳固。关于民事案件的这种制度选择对新中国司法探索和制度形成产生了深远的影响。     

The judicialization of politics,Italian style

Abstract

The recent dramatic changes in the Italian political scene have been related to the expanding role of the judiciary. The judicialization of politics is a process at work in many other democracies, but in Italy the judicial revolution has been supported by an institutional setting of increasing independence and by the strong powers entrusted to public prosecutors. However, until 1992 judicial power was somewhat balanced by the strength of the political class. But the political crisis that came to a head in 1992 has opened a political vacuum that the judiciary has been able to fill.

The 1996 elections have brought to power a new and stronger political alliance, the Ulivo. A new political stability could lead to a containment of judicial power but it is unlikely that the Italian judiciary will be brought back to its traditional passive role. Judicialization has to be considered a permanent trait of the Italian political system.     

Treason,sodomy, and the fate of Adenolfo IV,count of Acerra

The article recounts the charges brought against Adenolfo IV, count of Acerra, a magnate of the Regno in the reigns of Charles I and Charles II, and his execution for sodomy in 1293. This is one of the earliest, if not the earliest, known cases of the death penalty being exacted for sodomy in Europe. Behind it lies a trial in which Adenolfo was convicted of treason but received a royal pardon five years later. The story casts light on relations between the rulers of the Regno and their overlords the popes, on the judicial methods employed in the Regno, and on the government of Charles II.     

The Exception That Defines the Rule: Marshall's Marbury Strategy and the Development of Supreme Court Doctrine

Analyzing the development of the European Court of Justice (ECJ), Laurence Helfer and Anne-Marie Slaughter argue that in the early years of the court, ECJ justices "borrowed a leaf from Chief Justice John Marshall's book, edging principles forward while deciding for those most likely to oppose them in practice."¹ The most famous example of this paradox in Marshall's jurisprudence can be found, of course, in his seminal opinion in Marbury v. Madison. While asserting the right of the judicial branch to nullify legislation it deemed unconstitutional, Marshall used an implausible construction of the jurisdictional powers given to the Supreme Court in Article III of the Constitution² to deny the petitioner the remedy to which Marshall claimed he was otherwise entitled. While Marbury is generally portrayed as the fountainhead of judicial review in the United States (and therefore in liberal democracies in general), as Mark Graber points out, the decision was in fact a "strategic judicial retreat…in the face of threats by executive…power."³ In order to assert the power of judicial review, in other words, Marshall had to refrain from applying it in the case in question.     

Treason,sodomy, and the fate of Adenolfo IV,count of Acerra

The article recounts the charges brought against Adenolfo IV, count of Acerra, a magnate of the Regno in the reigns of Charles I and Charles II, and his execution for sodomy in 1293. This is one of the earliest, if not the earliest, known cases of the death penalty being exacted for sodomy in Europe. Behind it lies a trial in which Adenolfo was convicted of treason but received a royal pardon five years later. The story casts light on relations between the rulers of the Regno and their overlords the popes, on the judicial methods employed in the Regno, and on the government of Charles II.     

Castles,castellans and the structure of politics in Poitou, 1152– 1271

By the middle of the twelfth century Poitou had been divided into small units of local control, known as castellanies. A castellany was the territory surrounding a castle; within it the castellan exercised military, judicial and economic powers. Between 1152 and 1271 the control of castles in Poitou experienced a development of three stages, moving from single-castellany holdings by the province's fifty leading families via regional lordships pieced together by four of these families to country-wide hegemony by the count. The progressive consolidation of castle-holding corresponded to the development of political life. The chaotic political conditions of the second half of the twelfth century were replaced by the leadership of the regional lords after 1200, which in turn gave way to the unchallenged authority of the count after 1242. The logic of this tripartite development explains the achievement of Alphonse of Poitiers, count from 1241, in turning Poitou from a region of chronic turbulence into a well-governed country. This paper emphasizes the role of the regional lords as the bridge between extreme fragmentation of authority and effective centralization.     

John J. Parker and the Beginning of the Modern Confirmation Process

Ideological concerns' dominance of the Supreme Court confirmation process has certainly become routine, especially in the form of issue-driven interest groups' influence over the agenda for Senate debates. More significantly, the Senate normally focuses on what Laurence Tribe has called “the net impact of adding [a] candidate to the Court” ¹ in terms of steering the Court toward adherence to a particular judicial philosophy, such as originalism ² or pragmatism, ³ or toward a specific outlook on a given constitutional issue. And when the President nominates someone with prior judicial experience, the candidate's decisions, as well as his or her prior speeches or other public activities, become fair game as supposed indications of his or her fitness for service on the Court.     

1619-1928年间巴达维亚华人社会的民事审判程序初探

根据《公案簿》案例,分别对审前、审理和判决这三个阶段的审判程序进行了梳理。在1619-1928年间,巴达维亚华人社会的民事审判是一个典型的移民社会法律移植的历史现象。具有相当自治权力的公堂,负责华人社会的民事审判。公堂较为完整地将母国的法律移植到所在地,并保持了母国的民事法律传统。     

Corruption,Legal Modernisation and Judicial Practice in Afghanistan

¹1. I am grateful to anonymous ASR reviewers for insightful comments. An earlier preliminary version of this work appeared as ‘Afghanistan: Corruption and injustice in the judicial system’. Further research and fieldwork has been undertaken within the framework of activities of the Fernand Braudel International Fellowship for Experienced Researchers (Paris) and Rechtskulturen Fellowship (Berlin). I discussed some of the ideas illustrated here in a presentation at the Faculty of Law of Humboldt University (Berlin) in January 2013.View all notesAfghanistan’s justice system is currently at a crucial and troubled stage of development that will determine its effectiveness. This article focuses on the phenomenon of corruption inside judicial institutions. By integrating the analysis of narratives of corruption with the observation of judicial practice and a critical approach to the reconstruction process, I argue that in Afghanistan, the phenomenon of corruption can be understood in terms of its “double institutionalisation”, whereby mechanisms of exchange and of compensation, both already affirmed at the level of social practice, find a possibility of reaffirmation (of re-institutionalisation) in the legal system itself. The creation of an economic system that depends on international aid, the consolidation of a state apparatus over-determined by warlordism and foreign influences, and the process of legal modernisation itself all play an important role in the re-institutionalisation and radicalisation of corruption. By taking into consideration this scenario, I adopt an ethnographic perspective to explore some of the effects of corruption on the work of judges and on the access to justice itself.     

两汉县级管辖下的司法制度

汉代县廷的司法制度,遵循着一整套既定的诉讼程序。首先是立案,待县廷作出立案决定后,才进入审理案件的程序,案件的审结与县令长的素质密切相关。汉代司法审判程序还有一些如爰书、证据、乞鞫、监禁等规定。县级审判为第一审级,逮捕一般平民无须出示系牒等等。     

论清末东北宪政改革的特点

以实施宪政为中心的政治改革是清末东北政治现代化的重要特征。具体表现在 :一是通过官制改革调整了地方行政机构 ,加强了地方公署对边疆的控制 ,为东北实施宪政铺平了道路。二是把司法独立作为实施宪政的关键 ,完善了近代地方司法体系。三是以地方自治为实施宪政的基础 ,促进了东北近代民主运动的发展。四是以谘议局为实施宪政的后盾 ,扩大了谘议局参政的深度和广度 ,并充分利用谘议局与商会的特殊关系 ,使公署、谘议局、商会形成一个有机体 ,从而东北的宪政改革得以顺利进行。     

Thick Decisions: Expertise,Advocacy and Reasonableness in the Federal Court of Australia

Drawing from the litigation around the Hindmarsh Island Bridge (especially Chapman v Luminis Pty Ltd 2001) this article provides an analysis of judicial responses to anthropological expertise. Sensitive to the institutional responsibilities of judges, as well as rules of evidence, procedures and legal causes of action, it examines the strategic representation and appropriation of anthropological knowledge and practice. In exploring the relations between law and expertise the article illustrates how their combination shapes outcomes. In the process it explains how the judge could have produced a range of (in)consistent outcomes through the modulation of legal categories and their relations with prevalent images of anthropological expertise. This analysis positions the article to critically reflect on some of the implications for anthropologists working in and around legal or quasi‐legal settings as well as those commenting on that participation.     

Colonial rule,colonial repression and war crimes in the Italian colonies

A strange silence has long reigned in the public memory as well as in Italian historical studies regarding possible crimes committed by Italy in its colonial territories. The aim of this article is to reflect on the reasons for this silence through an examination of the major historiographical questions and a review of the few studies available on the subject. The historiographical use of the judicial category of ‘crimes’ or ‘war crimes’ should not be taken for granted, above all in examining the history of the colonial experience. The most important authors have ignored the risk that the sensationalistic use of the category ‘crime’ – in itself an extraordinary and exceptional event – can make one forget the weight of the ordinary running of a colonial power. With these precautions, the article offers a list of the principal episodes historians now unanimously define as crimes. These episodes eliminate any possibility of taking refuge in the self-absolving and vague appeals to stereotypes of Italians as ‘good people’. The article concludes by defining precisely the triple order of silences that together produced the general silence that the author considers an obstacle and a post-colonial stain on the memory of colonial Italy.     

France's Charter for the Environment: Of Presidents,Principles and Environmental Protection

France amended its constitution in 2005 to include a Charter for the Environment. The Charter lays out France's commitment to supporting the right to a ‘balanced environment’. This article first traces the Charter's origins to a legacy-building presidential initiative. Jacques Chirac decided to invest in a neglected policy domain in which his own majority had shown little interest. He was obliged to intervene repeatedly in order to bring this project to a successful conclusion. In doing so, he staked out environmental affairs as an area of potential presidential supremacy. Next, the content of the Charter is examined. In this document, French traditions of universalism come together with an international movement for anticipatory environmental protection. This is reflected in the constitutionalisation of the precautionary principle, which emerged as the most controversial part of the Charter. The debates this provoked tended to caricature a risk-management principle whose meaning has been carefully refined to forestall objections. Finally, the Charter's potential efficacy is analysed. The post-Charter record of legislative and judicial activity concerning the environment is meagre, but not wholly inauspicious.