法律与人文法学硕士评论

评论什么是法律虚构，为什么它有争议?由msmafree6685

msmafree6685 — 2021年7月23日星期五02:16:26 +0000

这些是合法的虚构:
人造人。为什么这在法律上?
这怎么合法?所有合法的东西都不合法。

评但丁的《保罗与弗朗西斯卡》及杰里的情感叙事力量

preciousjerry — 2020年7月20日星期一15:42:57 +0000

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法律与人文评论:即将到来的密集周由mm2049

mm2049 — 2019年6月2日星期日20:01:32 +0000

这是一个非常诚实和真实的观点，阅读法律想象和法律虚构，在法律和人文学科真正开始之前。你博客文章的一个方面确实打动了我。When you say, “as I read about the imaginary and the difficulty that lies in defining it, I realize that there is a lot we think we understand and yet are unable to define or explain. Albert Einstein said ‘if you can’t explain it simply then you don’t understand it well enough”. After going to the lectures and seminars and learning in detail what the concepts actually meant, I have realised that what you said above could not be more right. It is scary to think of how much the imaginary and the [legal] fictions actually have such an impact on real life. I do not think that the average human being, who has not astutely studied or looked into the matter realises how deeply entrenched the legal imaginary and legal fictions are in everyday life. I wish to illustrate my point by talking about an American case which concerns the issue of corporate legal personality or personhood, as I have been studying the corporation for a while now and my whole degree is based on it. In Citizens United vs. Federal Elections Commission, the US Supreme Court ruled that corporations, as legal persons, were entitled to the First Amendment right of free speech and could therefore spend however much they wanted on political campaigns endorsing the candidates of their choice in elections. So corporations can basically, albeit indirectly, influence the leadership of a country just because they are considered ‘persons’ by the law. Now, we cannot overlook how disproportionate this could be. Because corporations had to enjoy the same rights as natural persons, they were put on the same wavelength before the law; yet, this is completely inaccurate. How can a giant corporation for instance, which has millions of dollars in profit be on the same wavelength as the average middle-class American citizen ? It is quite unconceivable to see how their millions of dollars in political donations will have the same effect as the average citizen who would like to make a small donation to help the local candidate for example. Obviously, generously funded political campaigns are more visible and more likely to attract votes. In 2018, the giant corporation Uline was reported to have contributed at least $31.7 million to the Republicans’ campaign. Can this be compared to an average citizen’s donation? It is hard to see how. So big companies, fictitious beings, are having a direct influence over people’s political life. People are being sold what big capitalistic corporation’s politically want without really realising it and they are most likely to endorse it as well. If we think of it, does it not impede on the freedom of speech of natural persons? Or the freedom to think freely and creatively so that they can decide who are going to lead their country and have a massive impact on their lives? It suddenly feels like the corporation’s right as a fictitious person is more powerful than the normal persons right as a natural person. The power of the imaginary strikes again.

《沉默法案:法律与言语禁用》评析

fo86 — 2019年5月30日星期四16:06:37 +0000

非常感谢你的帖子。我从中发现了许多发人深省的东西!我想注意一下你在文章中提到的关于法律的权力使话语沉默或失去意义的引语:“在思考法律时，沉默的概念似乎特别尖锐:赋予或剥夺话语意义的权力，赋予一个人的声音或剥夺它的任何意义。我认为有必要，就像我相信你在你的文章中所做的那样，区分一个人的沉默行为，这个人“未能”承认说“不”是一种有效的言语行为，因此就像言语行为失败了一样;从法律所做的残废中，即使它承认话语是一个幸福的话语。可以说，这种区别显示了特定的或私人的残疾(个人之间)与机构之间的差异。巴特勒甚至在法律的运作中也指出了这一点，他说:“有必要区分那些作为法律语言具有约束力的必要条件的暴力和那些利用这种必要性以加倍伤害不公正行为的暴力。”(Butler, 1997: 62)如果我们做出这样的区分，就有可能对当今社会运动所提出的不同主张提出质疑。也许，如果法律的结构是沉默或禁止特定的言论行为，一些索赔将被禁止或重新配置到法律必须掌握的类别中。如果我们思考，例如，在要求男女平等权利，或国民与移民之间，法律能带来不同于正式平等的结果吗?或者，如果我们认为社会保障体系(如现在的智利)是保障一项社会权利，那么法律能否不将其转变为个人对抗国家的问题，而将其视为团结或政治共同体的问题?也许(至少在智利的经验表明，这种可能性更大)，当法律适用于需要对社区或政治进行全面解释的概念时，它会中和和“剥夺某人的话的意义”。 I think it does so, precisely, because all these claims have to be translated into the juridical language, which is, naturally, limited and biased.

论法律小说的创作:意义的重要性

fo86 — 2019年5月30日星期四12:07:46 +0000

感谢二位的热烈讨论!有一些非常有趣的观点让我想参与你们的谈话。从我同意更好和更有力地保护环境这一点出发，我不确定授予法律人格是否是更好或适当的保护环境的方式。当然，我同意这样一种说法，即赋予河流(或任何其他非人类实体)法律人格是一种政治声明，它可以“打开一扇门，让人们意识到什么是危险的”。然而，我认为通过法规等手段将环境保护制度化是实现最终目标的更好方式(如果有明确的方式的话)。随着法律人格的授予，河流(在这种情况下)在司法世界中与想要开发它的公司和个人平等。最后，保护问题留给了审判，作为平等之间的司法斗争。那么，保护非人类实体仅仅是人格问题吗?授予法人资格是否达到了保护他们不受不分青红皂白攻击的目标?我认为，更好的方法是将这些非人类实体视为合法的“事物”(我使用这个词并非带有贬义，而是因为我无法找到一个合适的术语来涵盖所有可能的保护主体或对象)，并赋予它们自己的法律地位。 I think that the recognition made by the Constitutions of Bolivia and Ecuador are really interesting cases of study, for they do not necessarily give legal personhood to the environment (which suppose to believe that the environment can ‘act’ for itself), but they recognised it as an ‘object’ subjected to particular rules. Then, the effective protection is not left to a battle in courts between equals (although, ultimately, any controversy will be brought to courts) but to the proper design of the rules meant to protect this new object/subject.

评论两个原创故事:fo86的《在讲故事与法律本质之间》

fo86 — 2019年5月30日星期四11:33:23 +0000

Thank you very much for your reply! I think you are right when bringing Da Vinci's quote, for it expresses a certain aura of a never-ending production of art. Moreover, I think that both the oriental understanding of the creation and Da Vinci's quote that you brought can help us to understand the particular way in which the law operates. I think that the key question is not what stories are being heard by the law (in a similar way in which storytelling operates) but, what stories can the law hear. I think that it is not (only) a matter of hegemony of discourses, but a structural limitation of law's concepts: they are designed to grasp individual rights, being necessary, therefore, to have an individual author to whom allocate the work, which, in turn, has to be a finished one, meaning that it can be distinguished as the result of the creative process. In my view, the problem with understanding the problem of the exclusion of silencing of different narratives from the law as a problem of the people holding the power to influence in law’s operation can distract us from a foundational problem of law, for it simply cannot grasp the entire reality and all the narratives. A tentative response to this can be that precisely the people in power control what can be thematised. However, I think that there is an internal limit for new or excluded narratives to be included, that might be even more powerful than the influence of the elites. Even if excluded narratives would be included in the law, they run the risk of being neutralised or denaturalised by the internal operation of the law, which is, by nature, adversarial. Therefore, all the narratives that require a certain type of solidarity or a different understanding of the political community, when juridified, run the risk to be thematised in law’s terms, as matters of individuals against individuals.

sc930评法律小说的创作:意义的重要性

sc930 — 2019年5月14日星期二19:51:27 +0000

Thank you for your reply and it’s almost a shame this question didn’t arise during class because it could have led to a lot of very interesting questions and debate! My point on Constitutional amendments was just to show that the law is in constant need of change and new concepts, things that maybe weren’t thought of in the beginning. In my personal point of view, legal personhood for a river doesn’t have to be a constitutional matter. Bolivia and Ecuador have included the protection of nature in their Constitutions but they haven’t given it legal personality – which leads back to my point about the symbolic of such an action over the actual application of this norm. If you are interested in this issue, I think you should read the cases of India and New Zealand where this exact scenario was discussed, in the case of India through judicial interpretation. You might find it very interesting. Now, on your final point, through my research on this matter, the question of whether or not granting nature legal personhood would change the way the world works has come and gone. I don’t actually think this is solution but it is one of the most common ideas presented when discussing the topic and the protection of nature. I completely agree with you in the sense that I wonder if another solution might not be more suited. I even strongly believe so. But I do think that legal personhood could be a first step.

评js2096《创造法律虚构:意义的重要性》

js2096 — 2019年5月14日星期二14:32:30 +0000

非常感谢你周到的回复。我发现它对更好地理解这个问题和你的论点背后的基本原理很有帮助。我也被你关于授予法人人格的时间性/空间性的论点所说服，以及你反对将先例作为不授予法人人格的理由。

你的回答让我进一步思考了一些问题。第一，你提到了宪法修正案，我想知道你是否想到了一个关于法人资格的司法解释，将河流纳入这一法律范畴，或者说是一个宪法修正案，明确规定了河流的法人资格。当然，你可能只是认为法律人格应该适用于河流，而没有相应的主张，它应该以这样那样的方式适用。我认为这是一个值得更多思考的有趣领域，不仅是在法律范围内的进步行动主义的可能性方面，而且因为它们可能意味着对河流法律人格概念化的不同方式。此外，我还发现这两种观点截然不同:说应该引入宪法修正案是一种政治论点，而说应该通过司法解释将法律人格适用于河流，则是对法律已经规定的内容进行评论，可能更容易受到批评。第二，你的回复给了我空间来思考河流的法律人格允许什么，以及它如何与你在最后一段中提到的更笼统的“保护自然”形成对比。如果这里的意图是在承认自然的内在价值方面取得政治和象征性的成就，并制定保护措施，以方便对自然损害的法律追索，那么我仍然不相信以保护和保存为重点的环境法不是更适合这项任务。 This makes me wonder what the claim of legal personhood offers that would not be provided for by these other remedies. It seems to me that the distinguishing element is that recognizing legal personhood gives nature (or certain elements of nature) agency within the law, the prized ‘subject’ status in the law. Whether giving agency to (elements of) nature before the law resolves these issues, and is the best tool for doing so, still seems to me an open question.

sc930评法律小说的创作:意义的重要性

sc930 — 2019年5月13日星期一12:37:07 +0000

谢谢你的评论，我很感激。我同意你说的很多，实际上我很高兴能回答。I’ll answer several points that I found interesting. The first one is that legal personhood is very much linked to a place and time. You say that giving legal personhood to a corporation doesn’t mean it has to be given to a river, and I agree, one does not lead to the other. While granting legal personhood to a corporation was a necessary thing to do in order to ensure coherence and practicality, I’d like to point out that women, disabled people or children were not granted legal personhood at some point in time. So what might seem ‘strange’ to us now, in granting legal personhood to a river, might become the most basic thing in a hundred years. I hear your point on jurisprudence and precedent but I would point out that the first decision granting legal personhood to a corporation did not have one. Like any new legal norm and concepts, it appeared as a consequence and reply to a certain situation. I would also agree that granting legal personhood might solve everything but law never truly solves anything, does it? Making murder illegal did not make dissolve the act of murder from the world. Dissuasion, in most cases, is the first step. I also think, as I said, that the symbolic of granting legal personhood to a river is what is a stake here. I agree that it could make the process complicated and, at the end of the day, lead to only trouble and failure, but legal is built on experiences and changes otherwise the American Constitution wouldn’t have twenty-seven amendments. Overall, I agree with your final point, but certain countries have included the protection of nature in their Constitution, for example, why? Because of the message it carries. One does not put a right or norm in the most basic text in the legal hierarchy without knowing the meaning it holds. This is what I think granting legal personhood could do, open a gate to make people realize what is at stake, or at least try.

评js2096《创造法律虚构:意义的重要性》

js2096 — 2019年5月12日，星期日16:24:05 +0000

非常感谢你这篇精彩的博文。本周，我同样被我们关于法律虚构和法律人格的讨论所吸引。你的帖子给我提了一些想法。

第一个问题涉及你提出的问题，“如果我们同意公司是一个人，那么为什么我们不能授予河流法律人格?”当然，我们可以赋予河流法律人格，但我不认为这是这个问题的利害所在。在你的评论中，我感到这个问题很大程度上是修辞性的，因为你主张授予法律人格来解决当代的环境和政治问题。所以，既然这个问题是在这样一个论点的背景下提出的，也许我们可以把它重新表述为一个有条件的命题:如果我们赋予公司人格，那么我们应该赋予河流人格。因此，既然我们已经做了前者，我们就应该做后者。然而，我突然意识到这是一个错误的方法。法人资格适用于公司，因为公司是个人的联盟，他们集中资源和努力，以实现共同的目标。 Furthermore, the application of legal personhood to corporations, in terms of rights and duties, is historically established in the law, dating back to the earliest American jurisprudence. There is therefore both precedent and good prudence for applying legal personhood to corporations. For rivers, I’m not so sure we have either. There is certainly no precedent in American jurisprudence for giving a river legal personhood, but more to the point, I am not sure that doing so solves the problem. If a river has legal personhood, then what exactly is it protected from? My concern here echoes one of my concerns with Posner’s article.

In Posner’s article, his final sentence summarizes one of his central claims: “The law does not turn something into a person by calling it one.” Well, the law might not turn something into a human being by calling it one, but if it calls something a person within the law, then that does entitle it to certain relevant rights. Once a corporation was deemed a person before the law, then that opened the floodgates to many rights—and the history of the relevant jurisprudence has been a steady expansion of corporate rights from freedom of speech to freedom of religious expression. Calling something a person before the law does something. However, in the context of calling a river a person the acquisition of rights from freedom of speech to freedom of religion are, to be frank, rather nonsensical. If the goal of calling a river a person is to employ a legal fiction in order to protect it, then I would think that other legal tools and policy approaches could more directly address what seems to be an issue of conservation. After all, legal personhood does not protect persons from the disastrous consequences of our current levels of polluted air and water in cities, and there are existing laws to protect rivers from certain levels of pollution and issues of waste management. On the issue of conservation, the sorts of policies we need to protect the natural environment are constitutively different from those needed in protecting human beings. I think we need to reflect more on what giving personhood does, and whether it is the best or most appropriate category to be applied.