“Jurisprudence”(法理学)还是什么?——基于英文文献的梳理分析

作为法理学学科名称的"法理学"一词,是法理学学科体系中的一个基础性概念。对于"法理学"一词的含义与所指在当代中国的法理学研究者中已经形成了一定的共识和通说,但一定程度上存在简单化、同质化程度较高、相关研究中引证的资料雷同度较高、引用的文献资料不新颖等缺陷。按照目前学界公认的观点,汉语"法理学"在英语中的对应词汇是"Jurisprudence"。借助较为新颖的英文文献,梳理"Jurisprudence"(法理学)一词在英文法学辞书、英文法学论文、英文法学论著中的表达后可以发现,至少在英文法学文献中,"Jurisprudence"(法理学)还有一种当前中国法理学研究界没有注意到的含义:在18世纪,指的是对自然法之首要原则、市民法、国家间法的研究。

Human Rights Jurisprudence in the New Era

This year marks the 70th anniversary of the founding of the People’s Republic of China.In the past 70 years,especially since the launch of reform and opening-up,under the guidance of the ruling philosophy of"serving the people,""people-oriented"and"people-centered",great achievements have been made in China’s economic construction and material civilization,political construction and political civilization,cultural construction and spiritual civilization,social construction and social civilization.

Study on the Jurisprudence of Ecological Economy in China’s Rural Areas

The jurisprudence of ecological economy studies the evolution of rural society from the demand-and-supply resource allocation to the welfare sharing allocation in China.Forming a symbiotic model with"ecological society"as mechanism and establishing a regional macroeconomic foundation accord with the patterns of marketization and"integration"in the rural society,thus reestablishing the civilized form of"Fivein-One"in China.The research and utilization of ecological openness in the rural areas can promote the construction of ecological system in the rural areas,construct a symbiosis in the rural society,and form a social well-being system with"an economic integration","a market complex"and"a system community",which will be in support of social stratification,organization optimization and demand in the rural areas,so as to lay a stable economy foundation with the Chinese characteristics.

The New Development of Human Rights “Jurisprudence” in Completing the Building a Moderately Prosperous Society in All Respects

Bringing the building a moderately prosperous society in all respects to successful completion is a great achievement in China’s modernization and contributes to the development of human rights in China and the world alike.The practice of building a moderately prosperous society in all respects has added new connotations to human rights theories,developing and outgrowing the traditional jurisprudence of human rights.This is reflected in the following aspects:the injection of the overall and equal human development has expanded the traditional western values of human rights based on human freedom and dignity;the injection of interpersonal mutual development,win-win cooperation and risk management and control has expanded the traditional western presupposition of social relations based on the social contract and civil society,and has thus expanded the social foundation of interpersonal cooperation,enriching the social concept of human rights.Guided by the concept of building a community with a shared future for human beings,the building a moderately prosperous society in all respects,enriching the human rights worldviews,has changed the worldviews of racism and zero-sum game among western developed countries and generated the new connotation that mankind should share the development opportunities and achievements.This has constituted a profound jurisprudence of human rights in China and formed an important discourse system in international human rights dialogue.

On Constructing an Experimental Teaching System for Digital Jurisprudence Courses

Developing digital jurisprudence, strengthening the practical teaching of law, and developing a practical teaching system of digital jurisprudence in colleges and universities based on the new era and in line with the law of scientific development are major issues of reforming and developing higher legal education in contemporary China. Taking XI Jinping Thought on the Rule of Law as the fundamental guide, focusing on the global cutting-edge topic of comprehensive and profound cross-integration of digital technology and legal education, and proceeding in line with the general law of law experimental courses in colleges and universities, we discuss how to construct the experimental teaching system for digital jurisprudence courses, and put forward a set of new ideas. An experimental teaching system for digital jurisprudence courses replenishes and improves the traditional law teaching mode, and innovates the mode of law talent cultivation under the new social form and new educational environment.

Strengthening Research on the Basic Legal Theory and Adapting Marxist Jurisprudence to the Chinese Context and the Needs of the Times

Innovative development of the legal theory research system requires strengthening research on the basic theory of law. Promoting research on the basic principles of Marxist jurisprudence is the fundamental premise for adapting Marxism to the Chinese context and the needs of the times. XI Jinping Thought on the Rule of Law is the fundamental criterion for the innovative development of the basic theory of law of contemporary China in the new era, and the adaptation of Marxism to the Chinese context and the needs of the times is the essential requirement for the innovative breakthrough of the basic theory of law of contemporary China.

The Development of Jurisprudence in China

Over the past forty years since the launch of reform and opening up in 1978,China has passed through three developmental stages:recovery,stability and flourishing growth.This development has revolved around the axis of“politics-rule by law-rule of law-rule of law system-rule of law path-rule of law China.”By virtue of discussion of the core themes of jurisprudence and basic categories,jurisprudence has mounted ever higher.On the basis of summing up existing experience,the development and progress of Chinese jurisprudence in the new era should firmly uphold a disciplinary orientation,an indigenous orientation,a mass orientation and an orientation toward practice and modernization.We must seek new logical starting points,constantly pioneer and innovate,and contribute new wisdom and programs to the comprehensive governance of the country according to law.

The Jurisprudence Trace Behind the DAESH Trench:Theoretical Basis of Islamic Fundamentalism Focusing on Kurdistan Province of Iran

Religious fundamentalism is a return to pure religious thought,beliefs,laws,and identity in the era of Islamic authority.Given the ever-growing spread of religious fundamentalism and revivalism in today’s world,especially in Islamic countries,the present article aims at studying the role of Jurisprudence in the tendency of people to Islamic fundamentalist thinking.The methodology of this article includes the documentary method and grounded theory method.Two data categories were studied to evaluate the issue:jurisprudential rulings–which can be a pretext for Islamic fundamentalist movements–and the reasons that motivate some Islamic fundamentalists taken from these jurisprudential rulings or matched with them.Data on understanding the reasons that motivate these individuals are collected through purposive sampling.Theoretical saturation is achieved after interviewing 27 persons.To achieve the goal of the paper,some jurisprudential rulings,Jihad rulings especially,were studied,followed by analysing the interviews.The findings show that there is an association between some jurisprudential rulings and the tendency of interviewees toward fundamentalists thinking.Moreover,it was found that their main reasons for supporting Islamic fundamentalism are modernism,the rebuilding of Islamic identity,and the founding of the Islamic state.Finally,it was found that some of the jurisprudential rulings could provide appropriate context for Islamic fundamentalist movements.

Diffusion tensor imaging in the courtroom:Distinction between scientific specificity and legally admissible evidence

Interest and uptake of science and medicine peer-reviewed literature by readers outside of a paper’s topical subject,field or even discipline is ever-expanding.While the application of knowledge from one field or discipline to others can stimulate innovative solutions to problems facing modern society,it is also fraught with danger for misuse.In the practice of law in the United States,academic papers are submitted to the courts as evidence in personal injury litigation from both the plaintiff(complainant)and defendant.Such transcendence of an academic publication over disciplinary boundaries is immediately met with the challenge of application by a group that inherently lacks in-depth knowledge on the scientific method,the practice of evidence-based medicine,or the publication process as a structured and internationally synthesized process involving peer review and guided by ethical standards and norms.A modern-day example of this is the ongoing conflict between the sensitivity of diffusion tensor imaging(DTI)and the legal standards for admissibility of evidence in litigation cases of mild traumatic brain injury(mTBI).In this review,we amalgamate the peer-reviewed research on DTI in mTBI with the court’s rationale underlying decisions to admit or exclude evidence of DTI abnormalities to support claims of brain injury.We found that the papers which are critical of the use of DTI in the courtroom reflect a primary misunderstanding about how diagnostic biomarkers differ legally from relevant and admissible evidence.The clinical use of DTI to identify white matter abnormalities in the brain at the chronic stage is a valid methodology both clinically as well as forensically,contributes data that may or may not corroborate the existence of white matter damage,and should be admitted into evidence in personal injury trials if supported by a clinician.We also delve into an aspect of science publication and peer review that can be manipulated by scientists and clinicians to publish an opinion piece and misrepresent it as an unbiased,evidencebased,systematic research article in court cases,the decisions of which establish precedence for future cases and have implications on future legislation that will impact the lives of every citizen and erode the integrity of science and medicine practitioners.

Outpatient competence restoration: A model and outcomes

AIM: To describe a model outpatient competencerestoration program(OCRP) and provide data on time to restoration of adjudicative competence.METHODS: The authors tracked the process by which individuals are referred for outpatient competence restoration(OCR) by courts in the United States capital, describing the unique requirements of American law, and the avenues available for compelling adherence. Competence to stand trial is a critical gate-keeping function of the judicial and forensic communities and assures that defendants understand courtroom procedures. OCR is therefore an effort to assure fairness and protection of important legal rights. Multimedia efforts are described that educate patients and restore competence to stand trial. These include resources such as group training, use of licensed clinicians, visual aids, structured instruments, and cinema. Aggregate data from the OCRP's previous 4 years of OCR efforts were reviewed for demographic characteristics, restoration rate, and time to restoration. Poisson regression modeling identified the differences in restoration between sequential 45-d periods after entrance into the program.RESULTS: In the past 4 years, the DC OCRP has been successful in restoring 55 of 170 participants(32%), with an average referral rate of 35 persons per year. 76% are restored after the initial 45 d in the program. Demographics of the group indicate a predominance of African-American men with a mean age of 42. Thought disorders predominate and individuals in care face misdemeanor charges 78% of the time. Poisson regression modeling of the number attaining competence during four successive 45-d periods showed a substantial difference among the time periods for the rate of attaining competence(P = 0.0011). The three time periods after 45 d each showed a significant decrease in the restoration rate when compared to the initial 0 to 45 d period- their relative rates were only 22% to 33% as high as the rate for 0-45 d(all P-values, compared to the 0-45 d rate, were 0.013 or smaller). However, the three periods from day 45 to day 135 showed no difference among themselves(P = 0.87).CONCLUSION: The majority of restored participants were restored after 45 d, suggesting a model that may identify an optimal length of time to restoration.

Developing phase of China's system of nature reserves in perspective

Up until 2009, 2541 nature reserves had been established in China. However, the process of developing this system of nature reserves was not quite smooth. Various kinds of information related to nature reserves, such as annual growth, the type of nature reserves established, motives behind building a nature reserve, legal instructions and the constitution of government sectors, were collected and analyzed in order to highlight the characteristics of the development of our nature reserve system. As a result, we identify three phases and their characteristics, i.e., the initial phase from 1956 to 1978, the establishment phase from 1979 to 1996 and the management standardization phase from 1997 to 2009, could be clearly identified. It is suggested that since the establishment of this comprehensive structural framework in China, the system should be entering a new developing phase. We recommend that more attentions should be paid on how to guarantee effective management and how nature reserves are able to maintain their value and fulfill their objectives in the future.

An Academic Summary of the International Conference Series on “The Role of the Proportionality Principle in the Pandemic Prevention and Control”

Against the background of a complicated global pandemic situation and normalized pandemic prevention and control in China,leading human rights scholars from China,North America and Eurasia conducted fruitful discussions on the human rights jurisprudence during pandemic through the lens of the proportionality principle at the Sixth Session of the International Seminar Series on"Global Pandemic Prevention and Control and Human Rights Protection",which was organized by the Center for Human Rights Studies of Renmin University of China,under the guidance of the China Society for Human Rights Studies.Focusing on the pandemic-related human rights conditions and legal challenges in global context,participating scholars examined the role of the proportionality principle during the containment of COVID-19 in six topical dimensions,including the normative utility,practical logic,reasonable limits,necessary measures,balancing of interests,and proportional jurisprudence in the post-pandemic era.In oder to cohere human rights jurisprudence for the development of a global community of health for all,this international seminar fostered five fundamental proportionality consensuses from five interrelated perspectives,involving human rights—rule of law—balance—contexts—trends".

On the Cornerstone Category for Law and Science of Law

After the revival of science of law in China,the predominant school in jurisprudence inherited the mantle of jurisprudence of USSR with right and duty as the focus of its jurisprudential study.It sometimes regarded right and duty as the core of law and thought all legal issues ended up as issues concerning right and duty.

基因信息与保险:社会政策与法理分析

壹、概论:使用人类基因信息的影响与伦理疑虑一、基因信息在保险上的价值保险是一种处理不确定性的产业。由于无所不在的不确定性构成了人类生活的风险,保险便成为人们以集体行动降低风险威胁的重要社会制度。

MORALITY AND LAW IN A GLOBAL SOCIETY： A PLACE FOR NATURAL LAW THEORY？

There are basically four stages of a person＇s thinking. The first is a person＇s quest for meaning. It is a time for questions. Socrates said that an unexamined life is not worth living. Yet in America, living an examined life is rare. The challenge is to live an examined life in a culture of unexamined lives. The second stage is a time for answers. We cannot avoid the realism of evil, yet today, few have seriously examined absolute evil. The third stage is a time for confirmation and assurances to our answers of evil and pain. The fourth stage is the time for commitment and beginning of the journey. For the simple person who has all the answers, there is no further journey. At the other extreme is the intellectual who never has all the answers. There is always a question for another day and there is never any really settled resolution on what he or she believes or why. There are two basic philosophical systems that have influenced our thinking about morals and about law. The first is naturalism, which began in the 6th century B.C., in the Greek Ionian culture with a certain set of cosmologies, most of which were naturalistic in nature where reality was expressed in terms of water, fire, earth, or air. Naturalism has experienced great growth since in the Enlightenment. However, the notion at the heart of morality and law is idealism. Indeed, for much of the history of legal thought, the connection between morality and law was found in idealism. It is within the philosophy of idealism that we find the history of natural law theory. This matters because how one thinks about the nature and purpose of law, what forms the foundation of law and how it is made, either legislatively or through the courts is one of the most elusive and persistent problems in the entire range of human thought. This article explores some of that history.

THE PRINCIPLE OF PROPORTIONALITY:SUMMARY AND CONSENSUS IN THE 6TH INTERNATIONAL CONFERENCE ON HUMAN RIGHTS PROTECTION UNDER PANDEMIC PREVENTION AND CONTROL,BEIJING(CHINA)2020

Against the backdrop of the COVID-19 pandemic and China’s regularized pandemic prevention and control,leading legal scholars from China,North America,and Eurasia participated in The 6th International Conference on Human Rights Protection under Pandemic Prevention and Control.Participants engaged in fruitful discussions on the normative necessity and practical relevance of the principle of proportionality in justifying their current governments’anti-pandemic measures.Focusing on pandemic-related human rights conditions and rule of law challenges in global contexts,this article summarizes the participating scholars’speeches through the integrated lens of human rights and the jurisprudence of health law in the COVID-19 containment phase.Speeches can be divided into six topical dimensions,involving normative utility,governance logic,reasonable limits,constitutional criteria,viable approaches,and post-pandemic challenges with respect to the principle of proportionality.To provide a more policy-relevant and theoretically sound framework for a community of common health for mankind,this article succinctly concludes with a series of overlapping consensus on the application of the principle of proportionality in the fight against the pandemic.This consensus,tentatively named the“Renmin Human Rights Consensus,”builds on five interrelated elements and generates five human rights assertions and a series of specific principles of health law.

THE LEGAL THOUGHT OF EMPEROR TAIZONG OF THE TANG DYNASTY （618--907）

Little scholarly work has been done on understanding Taizong＇s （one of China＇s most influential emperors） legal thought. Existing historiography has been descriptive and has not fully contextualized Taizong＇s legal thought in his broader political thought. Furthermore, it has been influenced by the traditional bias in Tang historiography as a whole, which has been adulatory toward Taizong＇s reign. Drawing from a variety of sources, including dynastic histories and Taizong＇s writings, this article seeks to complicate the existing historiography. It lays out key characteristics of Taizong＇s legal thought, situating them in the historical context in which Taizong operated, as well as contextualizing them within his broader political thought, to present a more balanced analysis. It will argue that Taizong was an emperor who was concerned with legality, competent legal administration, and leniency in punishments. His actions and rhetoric also suggest that he believed that law should be applied to the emperor＇s conduct as well. At the same time, this article also argues that Taizong should not be viewed primarily as an innovative legal thinker or as someone with an ideological or idealistic commitment to legal reform for its own sake. Rather, he was a man whose views on law were greatly motivated by practical, political concerns, such as concerns regarding the stability and legitimacy of his rule. More broadly, this article contributes to the historiography of traditional Chinese legal history by complicating the so-called dominant narrative of the process of ＂Confucianization of law＂ in premodern Chinese history by highlighting the role that specific historical actors （such as Taizong） played in that process.