元代法律体系之构建——元代法律组成解析

元代法律由以大札撒为核心的蒙古法和为了满足统治需要不断立法而形成的条格组成.蒙古法为元代地位最高之法,延续于蒙古国,称之为札撒,具有"以刑为主,诸法合一"法典的性质.条格,为元代立法所有成果,是对唐格的借鉴,对蒙古法的必要补充,具有"以行政法为主,刑法为其重要内容,诸法合一"法典的性质,含狭义条格、断例、制诏.在对元代法律组成解析的基础上,笔者认为元代法律体系由札撒、条格构成,在条格内又有亚系--狭义条格、断例、制诏.此体系的构建,有助于全面掌握元代法律,也有利于反思元史学界对元代法律的基本看法.     

Leibniz,Locke, and the Early Modern Controversy over Legal Maxims

This article investigates the context of a side line in Leibniz's critique of Locke on maxims. In an enigmatic and little-explored remark, Leibniz objects that Locke has overlooked some legal maxims that fulfil the function of ‘constituting the law’. I propose to read this remark against the background of the divergence between conceptions of legal maxims in the common law tradition and conceptions of legal maxims in the Roman law tradition. In a few remarks, Locke seems to echo the common law emphasis on customs and conventions expressed by legal maxims. According to such a conception, reason would mainly fulfil the function of subsuming particular norms under more general conventional norms. By contrast, Leibniz uses the Roman law idea that some ‘rules of law’ express demands of natural reason and, thereby, express principles constitutive of natural law. This is why he proposes to reform vague and confused ‘brocards’ used by jurists in order to identify sound maxims that provide a natural-law foundation for legal institutions.     

Regulating interpersonal debt in the bishop's court of Carpentras: litigation,litigators and the court, 1486 and 1487

Using notarial records, this article explains who sued whom at the bishop's court at Carpentras, why they did so and how the court managed people and their debt disputes. In 1486 and 1487, creditors pursued 240 suits over unpaid loans (about three-quarters of the court's business). Litigants spanned the social spectrum and included both Christians and Jews, suggesting that the court was well embedded in the local economy. This diversity, as well as the predominance of ‘horizontal lending’, matches regional trends. Drawing upon anecdotal evidence and quantitative work, the court's procedures, functions and appeal are explained. Since most loans were made orally, proving their existence was difficult. Cases rarely reached rulings and creditors could not expect from ecclesiastical judges the coercive innovations adopted by secular courts. Yet, this church court was a popular forum to authenticate debts, pressure debtors into confession and encourage peaceful, private concords.     

Great expectations – the European Union and cultural policy: fact or fiction?

The European Union secured limited legal ‘competence’ to act in culture in 1992. This article examines the operational context and its complicated and countervailing tensions that make European cultural policy formulation and implementation difficult. Underlying problems originate in the failure properly to define what is meant by ‘culture’ in different contexts or to identify clear and pragmatic policy objectives, although legitimate ‘instrumental’ use of culture is common. The EU’s institutional structures (Council, Commission and Parliament) are often at cross‐purposes, while the national interests of member states can have a negative effect. The structure and internal politics of the Commission ensure that the Directorate responsible for ‘culture’ remains marginal, despite its growing ambition. An attempt to institute an ‘Agenda for Culture’ in 2007 has had some initial success, but given the definitional, legal, political and administrative problems, claims being made for significant progress seem somewhat premature.     

清代刑案律例与地方性法规关系探析

在法律多元的视角下,清代刑事性地方性法规具有不同于现代法理的内涵及特点.在创制、引用等实践环节中,此类法规极大程度脱离了地域特点的影响而成为审断经验的载体,其特点的变换亦足以体现清代中央与地方政府间立法、司法的权限纠葛及相关的法律施用精神.     

中西历史比较研究是否可行?--由刑罚的宽免说到"专制主义中央集权"的可疑

对中西历史进行比较研究是一项极其困难的学术工作,学者们对其可行性和方法论尚未给出清楚系统的说明。比较史学是否可以成为像比较文学和比较法学这样为学界所公认的成熟学科还有待学者们的研究实践来证明。以中西法制史上刑罚的宽免为例,历史研究的对观或对照方法在某些个案研究中会有拓宽视野和思路的作用;而通过对中国古代历史研究中流行的“专制主义中央集权”概念的质疑性分析,我们发现,另一种可行的同时又是宏观的历史比较研究可以是超越时间和空间局限的社会科学研究。至少,这样一种宏观的思维将会帮助我们突破一些陈旧和可能错误的思维框架。     

Toxic torts as compensation: Legal geographies of environmental contamination litigation

Residents living in close proximity to contaminated sites may experience adverse effects from financial losses and property devaluation, leading to poor mental health and physical illnesses—effects that may require compensation. The most common legal process of seeking compensation is the toxic tort—litigation pressed on the basis that contamination has harmed the victims. Several recent toxic tort class actions in Australia brought by residents living in areas affected by contamination from per- and poly-fluoroalkyl substances (PFAS) exemplify that process. Two such actions, those at Williamtown and Richmond, provide an opportunity to explore how toxic torts currently function as a means to secure compensation, whether they mitigate the harms of the contamination and considering how spatio-legal manoeuvres may shape the litigation. In this article, we use a legal geography approach to analyse how plaintiffs’ bodies, litigants’ properties, and the state are constructed and represented by parties involved in these toxic torts. Legal geographers contend that examining the spatio-legal manoeuvres made via litigation can make visible the effects of legal action on those involved and draw out how the law and its instruments may shape places and communities. Toxic tort class actions have allowed those affected by the contamination to be heard and receive some compensation. However, we argue that they do little to alleviate plaintiffs’ concerns about the effects of contamination on their health, properties, and the environment. The findings have significance given that torts will likely play an increasingly prominent role in dealing with such challenges.     

When the personal becomes political: using legal reform to combat violence against women in Ethiopia

This article focuses on Ethiopia's first civil society organisation, the Ethiopian Women Lawyers Association (EWLA), which has been campaigning for legal reform to secure women's rights and address violence against women. Implementing legal changes to benefit women in Ethiopia is impeded by difficulties in using the formal legal system, by poverty and deeply embedded gender inequalities, by plural legal systems, and by entrenched cultural norms. However, the article argues that the most significant challenge is the increasing degree of authoritarianism in Ethiopian state politics, that this is crucial in determining the space for activism, and that this shapes the successful implementation of legal change. The research shows how women's activism around personal rights challenges public/private and personal/political boundaries and can be seen as a political threat by governments in contexts where democracy and rule of the law are not embedded, leading to repression of women's activism and hindering the implementation of measures to protect women's rights when states become more authoritarian. Little is known empirically about the impact of democratisation on the implementation of measures to protect women's rights in Africa. This article shows how the emergence of democracy and legal reform intersects with the emergence of women's rights, especially with respect to gender-based violence. It shows how trying to secure women's personal right to be free from violence through the law is profoundly political and argues that the nature of democratisation really matters in terms of the implementation of measures such as legal changes designed to protect women's rights.