Abstract The abolition of the judicial interpretation issued by the Supreme People’s Court of the People’s Republic of China in Qi Yuling’s case marks the end of the trend of developing a judicial constitutional review system in China, but issues of courts invoking constitutional norms in judicial decisions continue to arise. This essay investigates the actual situation of the Constitution in judicial decisions by categorizing 1907 court decisions that invoked the Constitution as the reasoning basis and the court decisions which invoked the Constitution as the decision-making basis and by exploring the logic of the use of the Constitution by Chinese judges. In the absence of a constitutional review system, the primary sense of Chinese judges invoking constitutional norms is characterized by “simplistic reasoning”, “politicized enforcement” and the “parent law” concept. The insufficient judgment reason is a universal feature of judicial adjudication in Chinese courts. However, due to the lack of a constitutional review system, the poor perception of the interpretation and application of the constitution may exacerbate the lack of legal arguments invoked by the Constitution. The political model of Constitution enforcement in China makes judges invoke the Constitution in judicial decisions by “asserting the prestige of the Constitution”, which leads to numerous errors in legal argumentation in judicial decisions. This also reflects the tendency of “political enforcement” to take precedence over the legal enforcement of the Constitution. The influence of the old “parent law” concept is that judges can arbitrarily apply constitutional norms directly to civil cases, including fundamental rights norms. By summarizing and describing the above three features, we can depict the activities of current Chinese courts in invoking the Constitution.
{"title":"How do Chinese judges invoke the constitution? Analysis based on 1907 decisions","authors":"Jun Yu, Jingxiong Cao, Le Cheng","doi":"10.1515/ijld-2022-2074","DOIUrl":"https://doi.org/10.1515/ijld-2022-2074","url":null,"abstract":"Abstract The abolition of the judicial interpretation issued by the Supreme People’s Court of the People’s Republic of China in Qi Yuling’s case marks the end of the trend of developing a judicial constitutional review system in China, but issues of courts invoking constitutional norms in judicial decisions continue to arise. This essay investigates the actual situation of the Constitution in judicial decisions by categorizing 1907 court decisions that invoked the Constitution as the reasoning basis and the court decisions which invoked the Constitution as the decision-making basis and by exploring the logic of the use of the Constitution by Chinese judges. In the absence of a constitutional review system, the primary sense of Chinese judges invoking constitutional norms is characterized by “simplistic reasoning”, “politicized enforcement” and the “parent law” concept. The insufficient judgment reason is a universal feature of judicial adjudication in Chinese courts. However, due to the lack of a constitutional review system, the poor perception of the interpretation and application of the constitution may exacerbate the lack of legal arguments invoked by the Constitution. The political model of Constitution enforcement in China makes judges invoke the Constitution in judicial decisions by “asserting the prestige of the Constitution”, which leads to numerous errors in legal argumentation in judicial decisions. This also reflects the tendency of “political enforcement” to take precedence over the legal enforcement of the Constitution. The influence of the old “parent law” concept is that judges can arbitrarily apply constitutional norms directly to civil cases, including fundamental rights norms. By summarizing and describing the above three features, we can depict the activities of current Chinese courts in invoking the Constitution.","PeriodicalId":55934,"journal":{"name":"International Journal of Legal Discourse","volume":"70 1","pages":"281 - 321"},"PeriodicalIF":1.5,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73455225","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract Deciphering the hidden political implications in legal discourse has become hot foci in the study of international politics to unravel the political roles and positionings of various stakeholders in law as well as its enforcement and adjudication. Drawing on CDA approach, this study provides a text mining of 12 extradition hearings on Meng Wanzhou case. The findings of the present study indicate that the case is in the name of law but actually with the nature of politics in the context of the U.S.–China trade war. It also demonstrates evidence of manipulation of political power and reframing of the event occurrences throughout the texts of the 12 hearings, by exerting the repetitive use of a bundle of legal discursive strategies. The violation of justice and equality in the legal discourse around the present case is based on the superior status of the U.S. in contrast with Canada in the discursive practices as well as the political contemplation of Canada, resulting in challenges to the fundamental principles of rule of law around the world. This research furthers the understanding of the strategies and entanglement of justice and injustice, power and control in the process of discourse construction.
{"title":"Politics behind the law: unveiling the discursive strategies in extradition hearings on Meng Wanzhou","authors":"Le Cheng, Xiuli Liu","doi":"10.1515/ijld-2022-2072","DOIUrl":"https://doi.org/10.1515/ijld-2022-2072","url":null,"abstract":"Abstract Deciphering the hidden political implications in legal discourse has become hot foci in the study of international politics to unravel the political roles and positionings of various stakeholders in law as well as its enforcement and adjudication. Drawing on CDA approach, this study provides a text mining of 12 extradition hearings on Meng Wanzhou case. The findings of the present study indicate that the case is in the name of law but actually with the nature of politics in the context of the U.S.–China trade war. It also demonstrates evidence of manipulation of political power and reframing of the event occurrences throughout the texts of the 12 hearings, by exerting the repetitive use of a bundle of legal discursive strategies. The violation of justice and equality in the legal discourse around the present case is based on the superior status of the U.S. in contrast with Canada in the discursive practices as well as the political contemplation of Canada, resulting in challenges to the fundamental principles of rule of law around the world. This research furthers the understanding of the strategies and entanglement of justice and injustice, power and control in the process of discourse construction.","PeriodicalId":55934,"journal":{"name":"International Journal of Legal Discourse","volume":"36 1","pages":"235 - 255"},"PeriodicalIF":1.5,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87691583","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract TuneIn is a case dealing with a portal service on the Internet that allows users to listen to Internet radio stations from around the world and even to select stations that play their favorite music at any given moment in time. The UK courts had to decide whether TuneIn’s activity amounted to a communication to the public of the music played by the radio stations. Because it is not authorized, it will constitute copyright infringement. The courts established that TuneIn did target the public in the UK and that on that basis, there was a communication to the public. In a Brexit context, the court refused to diverge from the caselaw of the Court of Justice of the European Union and put in place stringent requirement for future cases that may warrant any such divergence.
{"title":"The TuneIn case or communication to the public in the UK after Brexit: the status quo with targeting as a governance tool","authors":"Paul Torremans","doi":"10.1515/ijld-2022-2071","DOIUrl":"https://doi.org/10.1515/ijld-2022-2071","url":null,"abstract":"Abstract TuneIn is a case dealing with a portal service on the Internet that allows users to listen to Internet radio stations from around the world and even to select stations that play their favorite music at any given moment in time. The UK courts had to decide whether TuneIn’s activity amounted to a communication to the public of the music played by the radio stations. Because it is not authorized, it will constitute copyright infringement. The courts established that TuneIn did target the public in the UK and that on that basis, there was a communication to the public. In a Brexit context, the court refused to diverge from the caselaw of the Court of Justice of the European Union and put in place stringent requirement for future cases that may warrant any such divergence.","PeriodicalId":55934,"journal":{"name":"International Journal of Legal Discourse","volume":"9 4","pages":"223 - 233"},"PeriodicalIF":1.5,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72469596","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Clayton, Ó Néill, Charles Foster, Jonathan Herring, John Tingle: Routledge handbook of global health rights","authors":"Jian Li, Yilin Zhao","doi":"10.1515/ijld-2022-2078","DOIUrl":"https://doi.org/10.1515/ijld-2022-2078","url":null,"abstract":"","PeriodicalId":55934,"journal":{"name":"International Journal of Legal Discourse","volume":"17 1","pages":"379 - 388"},"PeriodicalIF":1.5,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80885172","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract This article explores the role of metadiscourse in the realization of judges’ persuasive strategies in challenging the reasoning of the majority opinion. In particular, the article describes how dissenting judges exploit the boosting features to produce convincing arguments and control the power relationship with an audience. The findings are based on a linguistic analysis of 27 judicial dissents by judges of the Russian Constitutional Court. As regards the choice of boosting devices to be searched in the corpus, the present work adopts Hyland et al.’s (2021) taxonomy of boosters. The study shows that Russian judges make extensive use of boosters to show disagreement and challenge the majority opinion. The results have implications for our understanding of judicial dissenting as a legal genre which has been understudied in the literature, and for teaching legal writing to law students. I suggest that judge’s competence in presenting arguments includes a developed knowledge of metadiscourse.
摘要本文探讨了元话语在法官挑战多数意见推理的说服策略实现中的作用。特别是，本文描述了持不同意见的法官如何利用助推特征来提出令人信服的论点，并控制与观众的权力关系。这些发现是基于对俄罗斯宪法法院法官的27份司法异议的语言分析。关于在语料库中搜索助推器的选择，本工作采用Hyland et al.(2021)的助推器分类法。该研究表明，俄罗斯法官广泛使用助推器来表达不同意见和挑战多数意见。这些结果对我们理解司法异议作为一种法律类型(在文献中尚未得到充分研究)以及向法律专业学生教授法律写作具有启示意义。我认为法官提出论点的能力包括对元话语的深入了解。
{"title":"Dissenting with conviction: boosting in challenging the majority opinion","authors":"O. Boginskaya","doi":"10.1515/ijld-2022-2073","DOIUrl":"https://doi.org/10.1515/ijld-2022-2073","url":null,"abstract":"Abstract This article explores the role of metadiscourse in the realization of judges’ persuasive strategies in challenging the reasoning of the majority opinion. In particular, the article describes how dissenting judges exploit the boosting features to produce convincing arguments and control the power relationship with an audience. The findings are based on a linguistic analysis of 27 judicial dissents by judges of the Russian Constitutional Court. As regards the choice of boosting devices to be searched in the corpus, the present work adopts Hyland et al.’s (2021) taxonomy of boosters. The study shows that Russian judges make extensive use of boosters to show disagreement and challenge the majority opinion. The results have implications for our understanding of judicial dissenting as a legal genre which has been understudied in the literature, and for teaching legal writing to law students. I suggest that judge’s competence in presenting arguments includes a developed knowledge of metadiscourse.","PeriodicalId":55934,"journal":{"name":"International Journal of Legal Discourse","volume":"10 1","pages":"257 - 279"},"PeriodicalIF":1.5,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84175788","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract This article investigates stancetaking by judicial opinion writers in the U.S. Supreme Court’s abortion jurisprudence. It examines the performative use of two kinds of stance evaluations, i.e., epistemic (im)probability and evidential (dis)belief. Using several sub-corpora, it contrasts the previously mentioned stance evaluations in majority opinions (168,329 words) and dissent opinions (105,517 words), thus contributing to a further understanding of the common law phenomenon of separate opinion writing. In light of the court’s decision to overrule this area of law and return it to the state level, this article also contrasts the use of performative stance evaluations in relation to two key jurisprudential issues: viability and state interests. The results show that dissent writers used a significantly greater number of stance evaluation markers. Although confidence levels varied across the different results, dissent writers also used significantly greater amounts of high certainty/strength markers when responding to majority opinions. This represented a kind of discursive escalation in which dissent writers diverged from majority opinions and expressed stronger counterstances. The article closes with a discussion of the major implications for the current law and directions for discourse research in a post-Roe legal landscape.
{"title":"Stancetaking in the U.S. Supreme Court’s abortion jurisprudence (1973-present): epistemic (im)probability and evidential (dis)belief","authors":"Jamie McKeown","doi":"10.1515/ijld-2022-2075","DOIUrl":"https://doi.org/10.1515/ijld-2022-2075","url":null,"abstract":"Abstract This article investigates stancetaking by judicial opinion writers in the U.S. Supreme Court’s abortion jurisprudence. It examines the performative use of two kinds of stance evaluations, i.e., epistemic (im)probability and evidential (dis)belief. Using several sub-corpora, it contrasts the previously mentioned stance evaluations in majority opinions (168,329 words) and dissent opinions (105,517 words), thus contributing to a further understanding of the common law phenomenon of separate opinion writing. In light of the court’s decision to overrule this area of law and return it to the state level, this article also contrasts the use of performative stance evaluations in relation to two key jurisprudential issues: viability and state interests. The results show that dissent writers used a significantly greater number of stance evaluation markers. Although confidence levels varied across the different results, dissent writers also used significantly greater amounts of high certainty/strength markers when responding to majority opinions. This represented a kind of discursive escalation in which dissent writers diverged from majority opinions and expressed stronger counterstances. The article closes with a discussion of the major implications for the current law and directions for discourse research in a post-Roe legal landscape.","PeriodicalId":55934,"journal":{"name":"International Journal of Legal Discourse","volume":"96 1","pages":"323 - 343"},"PeriodicalIF":1.5,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86741701","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract As researches in legal translation advance rapidly, it is critical to keep abreast of emerging trends and critical turns of the collective knowledge development in this field. A bibliometric network using Citespace to examine the original articles obtained from an initial topic search on legal translation can provide a visualized profile for various themes in legal translation, by facilitating the analysis of the status quo, intellectual base, hotspots and emerging trends and providing a systematic review of the evolution of legal translation literature. According to a scientometric analysis of academic publications collected in the Web of Science Core Collection related to legal translation, this study profiles the key topics, the most influential institutions, authors and journals in this area, as well as the distribution of category and the future trend in the field. The scientometric analysis is expected to offer an overall view of legal translation per se as well as to provide implications for studies in relevant fields.
随着法律翻译研究的迅速发展，及时了解法律翻译领域集体知识发展的新趋势和关键转折至关重要。利用Citespace建立文献计量网络，对法律翻译领域的原始文献进行初步的主题检索，通过分析法律翻译的现状、知识基础、热点和新兴趋势，对法律翻译文献的演变进行系统的回顾，为法律翻译领域的各种主题提供一个可视化的轮廓。本文通过对Web of Science核心文集中与法律翻译相关的学术出版物进行科学计量分析，分析了该领域的主要议题、最具影响力的机构、作者和期刊，以及该领域的类别分布和未来趋势。科学计量分析的目的是提供法律翻译本身的整体观点，并为相关领域的研究提供启示。
{"title":"Visualizing legal translation: a bibliometric study","authors":"Jian Li, Xitao Hu","doi":"10.1515/ijld-2022-2067","DOIUrl":"https://doi.org/10.1515/ijld-2022-2067","url":null,"abstract":"Abstract As researches in legal translation advance rapidly, it is critical to keep abreast of emerging trends and critical turns of the collective knowledge development in this field. A bibliometric network using Citespace to examine the original articles obtained from an initial topic search on legal translation can provide a visualized profile for various themes in legal translation, by facilitating the analysis of the status quo, intellectual base, hotspots and emerging trends and providing a systematic review of the evolution of legal translation literature. According to a scientometric analysis of academic publications collected in the Web of Science Core Collection related to legal translation, this study profiles the key topics, the most influential institutions, authors and journals in this area, as well as the distribution of category and the future trend in the field. The scientometric analysis is expected to offer an overall view of legal translation per se as well as to provide implications for studies in relevant fields.","PeriodicalId":55934,"journal":{"name":"International Journal of Legal Discourse","volume":"17 1","pages":"143 - 162"},"PeriodicalIF":1.5,"publicationDate":"2022-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85209323","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract With prominence of the typical features of digital era, particularly that people’s activities and social lives are becoming more digitalized, and humans have developed a new digital identity, the presentation and regulation of digital identity becomes an emerging theme. Based on these features of digital era, a slew of challenges have arisen, including the protection of personal privacy, preventing algorithmic bias, and balancing the imbalance between the right of public acquisition and data controlled by a few. Consequently, protecting digital rights should be embedded in public policies, to better balance rights and interests among various stakeholders. Establishing dual protection mechanisms for public and private law is therefore fitting and proper, and the future legislation may target the scenario-based protection of personal rights.
{"title":"Identifying the fourth generation of human rights in digital era","authors":"Lijue Song, Chang-Jin Ma","doi":"10.1515/ijld-2022-2065","DOIUrl":"https://doi.org/10.1515/ijld-2022-2065","url":null,"abstract":"Abstract With prominence of the typical features of digital era, particularly that people’s activities and social lives are becoming more digitalized, and humans have developed a new digital identity, the presentation and regulation of digital identity becomes an emerging theme. Based on these features of digital era, a slew of challenges have arisen, including the protection of personal privacy, preventing algorithmic bias, and balancing the imbalance between the right of public acquisition and data controlled by a few. Consequently, protecting digital rights should be embedded in public policies, to better balance rights and interests among various stakeholders. Establishing dual protection mechanisms for public and private law is therefore fitting and proper, and the future legislation may target the scenario-based protection of personal rights.","PeriodicalId":55934,"journal":{"name":"International Journal of Legal Discourse","volume":"103 1","pages":"83 - 111"},"PeriodicalIF":1.5,"publicationDate":"2022-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79453675","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract Whether the Numerus Clausus Principle is adhered to in IP Rights (IPRs) Law determines whether judges have the discretion to explain the rights that have not been legislated in a case. Legal interest is the superordinate concept of right, and “other rights and interests prescribed by law” in Article(Art) 126 of the Civil Code of the PRC refer to different types of legal interests. The legal interests that judges give relief by exerting their discretion in a case are the “interest” in Art 126 of the Civil Code, which has not risen to legal rights. Those flexible expressions conflicting with the Numerus Clausus Principle in the separate IPRs laws should be revised in the future. The Numerus Clausus Principle also requires judges to apply open concepts carefully when judging and reasoning, and protecting legal interests discriminatively.
{"title":"The clarification and application of the Numerus Clausus Principle of IP Rights in China","authors":"Y. Cho, Shan Sun, Fangxin Chen","doi":"10.1515/ijld-2022-2066","DOIUrl":"https://doi.org/10.1515/ijld-2022-2066","url":null,"abstract":"Abstract Whether the Numerus Clausus Principle is adhered to in IP Rights (IPRs) Law determines whether judges have the discretion to explain the rights that have not been legislated in a case. Legal interest is the superordinate concept of right, and “other rights and interests prescribed by law” in Article(Art) 126 of the Civil Code of the PRC refer to different types of legal interests. The legal interests that judges give relief by exerting their discretion in a case are the “interest” in Art 126 of the Civil Code, which has not risen to legal rights. Those flexible expressions conflicting with the Numerus Clausus Principle in the separate IPRs laws should be revised in the future. The Numerus Clausus Principle also requires judges to apply open concepts carefully when judging and reasoning, and protecting legal interests discriminatively.","PeriodicalId":55934,"journal":{"name":"International Journal of Legal Discourse","volume":"19 1","pages":"113 - 142"},"PeriodicalIF":1.5,"publicationDate":"2022-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83648257","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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