Die Selbstbehauptung und Selbstgefährdung des Friedens als Herrschaft des Rechts

Peace is conceivable only as a legal order. According to Hans Kelsen, a legal order is by its very nature a ‘coercive order’. Thus, peace and coercion are not mutually exclusive, but refer to each other in the concept of law. In this contribution, we elaborate and problematize the paradoxical relationship between coercion and peace in theoretical and historical perspective. For this, we differentiate between arbitrary force and legal enforcement in the context of world-order politics. While we argue in favor of peace through law enforcement, we also emphasize the element of arbitrariness in the concept and historical formation of law. This is to say that the stabilization of peace through legal coercion goes hand in hand with its simultaneous destabilization. The text unfolds this dilemma with reference to the evolution of the theory and practice of legitimizing the use of force from past to present. We argue that the dilemma cannot be overcome, but it can be mitigated through the creation of a rule of law, which allows for a reflexive treatment of the tension between peace and coercion.     

Reducing traffic fatalities in the American States by upgrading seat belt use laws to primary enforcement

A key component of crime deterrence is the certainty of detection, but in 2005 seat belt laws in 27 states prohibited law enforcement officers from ticketing an observed violation unless the driver is stopped for another offense, which is referred to as secondary enforcement. Thirteen states and the District of Columbia have upgraded from secondary to primary enforcement, which authorizes police to stop a motor vehicle if a driver or occupant covered by the law is observed not using a seat belt. To test the impact of seat belt enforcement provisions, cross‐sectional time series regressions are estimated for annual driver and occupant fatality rates in the American states from 1990 to 2002. Using several control variables for other traffic policies and state demographics, the results indicate primary enforcement is more effective in saving lives than secondary enforcement. Furthermore, upgrading to a primary law enhances the effectiveness of an existing state mandatory use law. © 2006 by the Association for Public Policy Analysis and Management     

What's the Harm? The Ethics of Intelligence Collection

Abstract

As the professional practice of intelligence collection adapts to the changing environment and new threats of the twenty-first century, many academic experts and intelligence professionals call for a coherent ethical framework that outlines exactly when, by what means and to what ends intelligence is justified. Reports of abuse at detention centres such as Guantanamo Bay and Abu Ghraib, the ever increasing use of technological surveillance, and the increased attention on the use of torture for intelligence collection purposes have all highlighted a need to make an explicit statement about what is and what is not permissible intelligence practice. In this article an ethical framework will be established which will outline under what circumstances the use of different intelligence collection activities would be permissible. This ethical framework will first underline what it is about intelligence collection that is ‘harmful’ and, therefore, should be prohibited under normal circumstances. The ethical framework then outlines a set of ‘just intelligence principles’, based on the just war tradition, which delineate when the harm caused can be justified. As a result, this article outlines a systemic ethical framework that makes it possible to understand when intelligence collection is prohibited and when it is permissible.     

我国执法权配置的法律实证分析

执法权是国家权力体系中最活跃、最重要的一项权力,其行使的得当与否与每个公民的切身利益息息相关。然而,从目前的情况看,我国执法权的行使还存在着令人忧虑的问题:一方面执法权交叉重叠;另一方面执法权又行使不力。造成这一结果的直接原因是我国的法律制度在执法权配置上存在漏洞,即现行立法过多迁就旧的行政管理体制,过于强调部门的利益,执法权被支解,执法主体过多过滥;同时现行法律制度过于注重对执法行为的约束,忽略执法权的科学配置。这些问题都有待于在我国的立法过程中逐步得到解决,即加强与完善我国各级政府的组织立法,规范各级执法权。     

How Violence Breeds Violence: Some Utilitarian Considerations

Recent philosophical writing about war has focused upon just war theory, especially how best to construe the ius ad bellum and ius in bello tenets, and whether the distinction between combatants and non-combatants can be made in the modern world. Historically and politically, calls to war have often appealed to utilitarian considerations. In this article, I discuss important long-range consequences rarely mentioned in utilitarian defences of particular decisions to engage states in war. When consequences are weighed fully not only in the short term but with an eye to the future, bearing the destiny of all people in mind, it emerges that belligerent approaches to international conflict resolution will not maximise utility.     

Counter-Intelligence for counter-revolutionary warfare: The South African police security branch 1979–1990

In counter-revolutionary warfare strategy, political action forms the overwhelming part; however, also central as an off-shoot of the tenets of counter-revolutionary warfare is the elimination of insurgent structures – generally a euphemism for assassination. In reality, assassination is a subset of covert paramilitary action, implemented as a consequence of counter-intelligence or even counter-terrorism. South Africa's Security Branch presents one of the best recent examples of the use of counter-intelligence techniques for counter-revolutionary warfare. While politico-constitutional intelligence was gathered by the National Intelligence Service to support constitutional efforts to achieve a settlement of the conflict and bring about a new political dispensation in South Africa, the apartheid government relied on the covert operational capabilities of the security forces (especially the Security Branch) to not only halt the ‘Revolutionary Onslaught’ of the liberation movements, but to eliminate them as a viable political and revolutionary force. In attempting to support an unwinnable political objective, the ultimate corruption of the intelligence process and the reliance of individuals overseeing it far and away on the covert operational intelligence capabilities of the state, the apartheid government brought about its own downfall. The Security Branch was at the heart of these efforts.     

Mutual Optimism and War

Working with the definition of mutual optimism as war due to inconsistent beliefs , we formalize the mutual optimism argument to test the theory's logical validity. We find that in the class of strategic situations where mutual optimism is a necessary condition for war—i.e., where war is known to be inefficient, war only occurs if both sides prefer it to a negotiated settlement, and on the eve of conflict war is self-evident—then there is no Bayesian-Nash equilibrium where wars are fought because of mutual optimism. The fundamental reason that mutual optimism cannot lead to war is that if both sides are willing to fight, each side should infer that they have either underestimated the strength of the opponent or overestimated their own strength. In either case, these inferences lead to a peaceful settlement of the dispute. We also show that this result extends to situations in which there is bounded rationality and/or noncommon priors.     

学前教育财政投入立法的思考

当前,学前教育已成为我国整个教育体系的"短板"。社会对"入园难、入园贵"反映强烈,而其根本症结在于学前教育财政投入不足。加快学前教育财政投入立法,明确政府投入的责任和规范政府投入行为尤为必要。学前教育财政投入立法是依法治国、依法治教的必然要求,是保障学前教育健康发展的客观需要,也是规范政府投入行为的现实需求。同时,我国学前教育财政投入立法具有充分的宪法、法律和政策依据,立法的社会基础和经济基础相对成熟。借鉴国外立法经验,我国学前教育财政投入立法大体上应包括总则、学前教育财政投入的来源、学前教育财政投入的分配和使用、学前教育财政投入的执法和监督、学前教育财政投入经费管理和审计、学前教育财政投入的法律责任、附则等基本框架。     

The war on cartels and the social meaning of deterrence

The global war on cartels has had much success in introducing tough sanctions for cartel conduct, such as price fixing and market sharing. The policy rhetoric justifying criminalization assumes that compliance can be induced through deterrence. This, in turn, assumes that business people know about the law, believe that they are likely to be caught and face enforcement action and jail if they break the law, and calculate that they should comply. This paper problematizes these policy assumptions using evidence from a survey of a random sample of Australian business people and in‐depth interviews with 25 cartelists. This paper argues that business people's knowledge about the law is less important than their relationship with (or distance from) the law. Corporate elites see themselves as intimate with the law and, therefore, able to strategically “play” the law; while small business people and managers lower down the corporate hierarchy see themselves as “innocent” of any knowledge of the law. The impact of a policy of increased sanctions for misconduct cannot be understood solely in terms of marginal difference in aggregate levels of deterrence. It must also be understood in terms of how it interacts with people's experience of the law to create and maintain or contest and destabilize social segmentation and inequality.     

少数民族中心城市和谐行政执法方式的探索——以贵州省凯里市为例

少数民族地区中心城市是少数民族聚居地,在城市管理执法中由于民族习惯引发的纠纷较多,构成城市管理的特殊问题,这些民俗习惯将渗透于案件的执法管理过程,形成特殊性。基于此,少数民族地区城市的执法管理,应该充分考虑少数民族文化习惯尤其是民族禁忌,采取变通执法,做到国家法律与地方文化习惯的兼容,才能使少数民族地区城市执法达到和谐目的。     

论我国执法制度的重理

执法制度的重理是我国改善执法状况、提高执法水平的需要，也是我国加入WT0后政府行为适应调整的需要。根据目前我国执法中存在的问题，我国执法制度的重理主要涉及执法形式重理、执法组织重理、国家公务员管理重理、执法方式重理、执法程序重理等。     

The use of intelligence by insurgent groups: the North Vietnamese in the Second Indochina War as a case study

The need to define intelligence is understandable because the secrecy surrounding it can almost make it appear too amorphous to study. In most definitions, the authors not only attempt to define what intelligence is but also who does it. Until recently the focus has been on the state with occasional focus on sub-state actors such as law enforcement agencies. After 9/11 there was a shift from the study of inter-state intelligence to the use of intelligence against non-state actors such as Al Qaeda. The literature still treated these non-state actors as something to be acted upon rather than intelligence actors in their own right. By examining the North Vietnamese use of intelligence during the Second Indochina War this article takes a step to redress that oversight. This article will discuss the North Vietnamese use of intelligence in the context of definitions of intelligence and intelligence actors and will use John Gentry’s proposed model of violent non-state actor intelligence as its analytical framework.     

Crisis in Kosovo: A Just Use of Force?

This article looks at NATO's armed intervention in Serbia from the perspective of international law, and especially just war theory. After explaining the principles by which just war theory permits armed intervention, the crisis in Kosovo is used as a fascinating and relevant case study.     

Alone and far from home: Are separated refugee children adequately protected?

Among the thousands who arrive in Europe to seek asylum each year, a significant number are children traveling on their own. Like adults, they are fleeing from war and armed conflict situations, persecution, severe poverty, and deprivation. Some arrive because they have been trafficked and some are fleeing for reasons specifically related to their status as children. They need special attention, not only in terms of specialized care and assistance, but also in terms of the refugee status determination procedure. When they arrive in a country of asylum they risk further violations of their rights. This paper intends to outline the rignts of these children under international law; to highlight key protection concerns facing them, particularly in the European context; to summarize ways of how a UN/NGO program has attempted to address these problems; and to make some specific recommendations.     

Time series applications to intelligence analysis: a case study of homicides in Mexico

Abstract

The scale of lethal violence in Mexico seen in the past decade has been a pressing concern for both Mexican and US officials, including law enforcement organizations, intelligence agencies, and policy makers. With much of the homicides being a result of the trafficking of illegal drugs, it has been suggested that the homicides in Mexico follow seasonal patterns tied to the drug trade, specifically to the cultivation of heroin. In this paper, conventional econometric time series methods are applied to test this hypothesis. Results demonstrate that not only do the drug-related homicides in Mexico display evidence of seasonality, but also that seasonality appears empirically related to the heroin trade. The paper makes the larger argument that time series and other statistical methods are an untapped resource that can complement standard intelligence analysis to support defensible judgments based on the scientific method of inquiry. However, a fuller integration of statistics and traditional analysis would require sufficient support structures be developed to encourage and promote such analysis.     

Swedish Reaction to the Assassination of the Swedish Prime Minister Olof Palme

Sweden's Prime Minister Olof Palme was shot dead, on a street in central Stockholm, on his way home from the cinema late in the evening of 28 February 1986. The Swedish public reacted with grief and horror. The emotional reactions to Prime Minister Palme's assassination were greater than expected. However, placed in an international context they are, nevertheless, relatively weak. In the analysis, the situation six and four years after the assassination will be compared with the situation three weeks after the event. The focus is on: what role, if any, the assassination of Prime Minister Olof Palme has played in the way in which Swedes and immigrants express their views on a number of important issues related to the murder and what effect, if any, it might have on the Swedish political culture and on the trust of the Swedes in the political and judicial system. The final argument that can be presented from this study of the connection between exposure to a dramatic event, such as the murder of a prime minister, and children's and adults' political values, is that the emotional effect of the assassination fades away fairly quickly and is replaced by a much more vague and unclear structural effect related to the total impact of the assassination seen as a dramatic event of national importance. This kind of structural effect on the political culture in a country can never be clearly described and analysed for the simple reason that an effect of this magnitude is almost impossible to control and isolate from other experiences.     

中国的工作歧视:形式、原因及对策

本文是对我国工作歧视现象的研究。本文分析了我国工作歧视的形式,分析了工作歧视产生的原因,并且提出对策。本文认为,国家的作用在我国反工作歧视中至关重要,国家不仅要完善立法和执法,还要规范自身的用工行为,清理和及时废止与劳动者平等就业权相悖的法律法规,承担生育成本,培育劳动者自身组织的力量等等。     

中国反垄断执法机构评析

我国反垄断法建立了中国反垄断执法程序制度的基本框架，但反垄断执法机构存在多头执法、交叉执法等诸多缺陷，而执法机制的有效性是反垄断法有效实施的重要保障。本文对中国反垄断执法机构的现状进行了评析，并结合我国反垄断执法的实践以及外国经验的比较借鉴等因素，通过提高反垄断执法机构的权威性和独立性，增强《反垄断法》的操作性，建立多机构执法的协调机制，健全执法人员任命机制，完善当事人的救济权等途径，以期建立符合中国国情、保证反垄断法有效实施的执法体制。     

On Hobbesian Resistance Theory

As many have observed, Hobbes's political theory contained elements of an inchoate resistance theory. The present article identifies those elements, and considers their significance for the general interpretation of Hobbes's thought. It is suggested that Hobbes's resistance theory provides evidence of his belief that the artificial commonwealth was built upon foundations of natural morality. If the sovereign ruler of any commonwealth infringed natural morality then she might well face the natural punishment of rebellion, even though in the artificial realm of civil law this rebellion could never be justified. In the light of these remarks, the interpretation of Hobbes given by Howard Warrender is reexamined. Although Warrender's conclusion that Hobbes grounded natural morality in the command of God cannot be sustained, it is shown that much else in Warrender's work remains valid. In particular, his contention that Hobbes was a genuine natural law thinker seems more defensible when Hobbesian resistance theory is properly understood.     

Space Mines: Dialectics of Legality

The development of micro-satellites, including nano-satellites, has opened up opportunities for their varied uses. One such utility is as space mines. The purpose of this instrumentality is protective and defensive to escort important space-mission vehicles. These act as security commandoes till impelled to action by anticipated threat or hostile intruder entering the path. Similarly, conventional land mines can be adapted for use on the surface of the moon. These, also termed “space mines,” can serve as proximity or peripheral defense to installations and national assets on the moon and other celestial bodies.

Space mines by their small mass and weight or nature of operation cannot be regarded a weapon of mass destruction or used as nuclear weapon prohibited under the Outer Space Treaty. Secondly, their deployment in passive defensive role does not foul with any substantive provision of space law. Nor are these prohibited by any definitional embargo. Illusioned by the apparent legality, space mines could be strategized in large configurations making outer space environment denser for safe space traffic. Modern satellites are high-cost vehicles and their operational economics cannot brook attrition.

Considering the comparable purpose and role of space mines, one needs to draw wisdom from experience with landmines or cluster bombs. These have been banned on the earth after suffering enormous losses and tragedy. Prudence ordains to learn from past mistakes and it would seem sagacious to nip the evil of space mines in the bud itself.