“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.

AN EXPLORATION OF CHINESE JURISPRUDENCE:STAGES, FIELDS,AND TOPICS BASED ON MY EXPERIENCE

Since reform and opening up,the development of Chinese jurisprudence has experienced a tortuous course,the exploration of which is divided into three stages:the entanglement of class nature,the dual role of Western jurisprudence,and the return of Chinese jurisprudence.The author proposes a series of topics in eight fields,namely,the changes of the political and legal thoughts of the leaders of the Communist Party of China,socialist jurisprudence with Chinese characteristics,theory of the rule of law, study of sociology of law,study of comparative law,study of law and globalization, theory of legislation,and evaluation of the rule of law.Some of these topics have already been solved.For others,only the basic framework for solving the problem has been proposed.Even for the solved problems,due to social and economic changes,the solutions will need to be re-proposed.Chinese jurisprudence should face China's problems.

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.

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。

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.

40 YEARS OF CHINESE REFORM AND OPENING UP ALONGSIDE CHINESE CONSTITUTIONAL STUDY

China has a long history of constitutional jurisprudence,bearing different academic missions in different eras.China's constitutional jurisprudence,characterized by its academic logic and principled nature,has not only facilitated social development and progress but also actively played academic functions during the Chinese reform and opening up.This paper considers the social changes during the last 40 years of the policy's implementation as the background and,by employing standardized and literature analysis methods,combs the main progress and evolution of the knowledge system during the 40 years of constitutional jurisprudence study,followed by a look into its future.