International Legal Rulings on Lustration Policies in Central and Eastern Europe: Rule of Law in Historical Context

The transitional justice literature highlights various trade-offs involved in the choice and implementation of lustration as a transitional justice measure in Central and Eastern Europe. This article examines how international legal body rulings on lustration laws have interpreted rule-of-law versus justice concerns. The European Court of Human Rights and the International Labour Organization have explored possible information problems, due process violations, employment discrimination issues, and bureaucratic loyalty concerns within the context of lustration. Three findings emerge from their legal rulings. First, contrary to popular notions, international legal bodies are not antilustration. The institutions are engaging with questions regarding the fair implementation, not the legality, of lustration laws. Second, the prioritizing of justice concerns during the transition efforts is highlighted as a way to lay a strong democratic foundation. Third, the organizations have emphasized the importance of placing rule of law in historical context, thereby situating post-Communist societies within other posttotalitarian regime-building narratives.     

Trends in the Experience of Injustice: Justice Indexes About Earnings in Six Societies, 1991–1996

This paper examines trends in the experience of injustice in six societies—Bulgaria, Czech Republic, East and West Germany, Hungary, and Russia—between 1991 and 1996. Using data collected by the International Social Justice Project, we estimate the justice index, JI1, and its decomposition into the amount of injustice attributable to poverty and the amount of injustice attributable to inequality; and we also examine gender differences in the justice index and its decomposition. The justice index is a summary measure of individuals' justice evaluations, and therefore the paper also takes a preliminary look at the two basic quantities that underlie the justice evaluation—actual earnings and just earnings—and their determinants, investigating, for the men of East and West Germany, the actual and just returns to schooling and experience in 1991 and 1996.     

Perceived Injustice in Unified Germany and Mental Health

In a questionnaire study, 929 West Germans and 1275 East Germans were asked to appraise East–West differences in life quality on the labor market 7 years after the German unification. Judgments included perceived East–West differences, the justice of East-West differences, and temporal comparisons (changes since the unification and expectations in East and West Germany). Changes and expectations for East and West Germany were combined to obtain social-temporal comparisons. Negative emotions (envy, anxiety, moral outrage, guilt, hopelessness) and positive emotions (gratefulness, pride) regarding the situation of the labor market were also assessed. Mental health indicators included measures of depression, self-esteem, and psychosomatic well-being. Parameters of a path model were estimated by regressing (i) mental health on emotions and judgments and (ii) emotions on judgments. Mental health of East Germans is associated negatively with envy, anxiety, and hopelessness. Moral outrage has a positive suppressor effect. Mental health of West Germans is linked negatively with envy, anxiety, and existential guilt whereas pride, the perception of unfair privileges, and optimistic expectations have positive path effects. Appraising East–West differences as unjust plays a core role in predicting emotions in both samples. Social comparisons and social-temporal comparisons are superior to egocentric temporal comparisons for predicting social emotions (envy, moral outrage, guilt) while egocentric temporal comparisons are generally more important for predicting nonsocial emotions (anxiety, hopelessness). Theoretical and practical implications of the findings are discussed.     

The Purge of Lawyers after the Breakdown of the East German Communist Regime

When in East Germany communist rule broke down, West Germans stood ready to take over. The end of communism also meant the end of the German Democratic Republic state; unification came as unconditional surrender to the western Federal Republic of Germany. The purge of the former regime's leaders therefore became intertwined with the West German takeover. With the takeover came Western politicians, managers, and professionals, forcing East Germans to compete fur jobs and influence. Opportunistic strategies with regard to the future buildup thus mixed with the desires for revenge and justice toward those responsible for the communist past. In this article I focus especially on the screening of the East German legal profession for reemployment in the unified Germany. In the West German tradition the legal profession forms the core of the civil services. In communist states lawyers had remained relatively marginal to the center of political power. Thus Western perceptions of the role of law account for the demise of the East German legal profession. That demise is taking place at a time when the Western regime is in need of many more legally trained people than ever worked in East Germany.     

The Effect of Legal and Extra‐Legal Variables on the Recommending and Granting of a Pardon

A familiar but little studied area of criminal justice is that of pardons. Using data from the Pennsylvania Board of Pardons, the decision‐making process is examined to determine the degree of correspondence between the board's recommendation and the governor's decision to grant or deny a pardon. Included in the analysis is an assessment of the relative impact of legal and extra‐legal variables on the decision‐making process. The paper concludes with a discussion on the dynamics of the process, including why some individuals are more likely than others to be granted a pardon, and the implications the findings have for both policy and theory development.     

Social justice in the large and small

Social justice is an issue at both the large or even whole-society level and the very small group or dyadic level. If it is an issue in distribution of resources or welfare, rather than an issue of procedure, it requires very strong interpersonally comparable value judgments. This generally distinguishes it from other small and large group moral and political problems, which can often be resolved satisfactorily without such a strong value theory, in particular without interpersonal comparisons of welfare, because their resolution can yield mutual advantage to all concerned. At the dyadic and small-group level social justice is the philosopher's problem of beneficence; at the large level it is the problem of distributive justice. Much of the social-psychological literature on social justice deals with the small-scale problem; political theory is generally concerned with the large-scale problem. Yet, strategically and in their value theory requirements, the two problems are in many ways analogous. In both variants of social justice the core problem is a pure conflict interaction in which one party or group must bear a cost in order that another party or group may benefit.     

Lustration and Truth Claims: Unfinished Revolutions in Central Europe

This article focuses on discourses conducted in Central/East European countries, and Poland in particular, with respect to the issue of participation of former secret agents in the new power structures. It exposes the reader to the range, style, content, and variety of lustration discourses. It explores their relevance for the ongoing power struggle, paying special attention to their focus on and contribution to the processes of construction and control of truth about the past.
Given that the procedural and legal-institutional issues occupy a marginal place in the debate, it is inferred that the main sources of discord are more ideological and political than legal. The two main strains within the global lustration discourse are identified as: (1) dystopian discourses that paint a frightful picture of a lustrated society and imply that the upheaval of lustration would ruin the chance for democratic evolution, and (2) affirmative discourses that assert the need for lustration and portray the refusal to implement it as a barrier to successful transition to democracy. The article elaborates on assumptions and beliefs, which tend to link the dystopian opposition to lustration with the left-wing political affiliation or self-identification and the affirmative discourse with the right-wing orientation.     

“Iraqnophobia”: A Biomedical History of State-Rearing and Shock Doctrine in Iraq

The history of Western foreign policy in the Middle East has long assimilated Arab culture to sickness. Specifically, the biological episteme of “contamination” has shaped American foreign policy in the Gulf for decades. In so doing, the US Government continually borrowed references from the natural sciences to frame its foreign policy, leading some commentators to claim that biology supplanted philosophy and religion as the primary political category. The article analyses the semantics of Iraqnophobic metaphors, from the British experience of “nursing” Arabs at the close of the First World War to the recent “shock doctrine” of American therapists. First, the paper will concentrate its attention on the metaphors of disinfection and surgical resection. Second, it will address the metaphors of lustration, State-rearing and scientific recovery. Finally, it will explore Iraqis’ rebellion against their self-appointed tutors and doctors. Elaborating on the belligerents’ nursing and biomedical metaphors, the following pages address the life cycle of foreign “legal transplantation”, “antibody” resistance and “immunosuppressant” counterinsurgency in Iraq.     

The Nuremberg Trial and its Impact on Germany

The impact of the Nuremberg trial on Germany has changed overtime. It is not only a question of evolving legal debate, butalso a correlation of historical, political and moral developments.The author considers the reception of the International MilitaryTribunal (IMT) trial during the Cold War. West Germany rejectedNuremberg's historic precedent, principally on the grounds thatthe Allies had enforced victors’ justice, and that theTribunal had applied ex post facto law by violating the nullumcrimen principle. Meanwhile, East Germany seemingly took upthe cause of Nuremberg by prosecuting minor Nazi perpetrators.However, this affirmation was politically motivated, and itled to inhumane abuses of power, exemplified by the Waldheimtrials. The reunification of Germany marked the beginning ofa positive approach to the Nuremberg legacy: the new generationof judges, politicians and academics was increasingly sympatheticto international criminal justice, and adopted the Nurembergprecedent by dealing judicially with crimes committed in theEast during the Cold War. The study goes on to deal with therelevance of West German legal critique for modern internationalcriminal law. The author suggests that a distinction shouldbe made between true victims of international crimes and thosewho wish to revise history by portraying themselves as such,as many West Germans did after World War II. Moreover, the ‘victors’justice’ argument must not be used to conceal the factthat justice has indeed been administered. However, the criticismof the IMT's violation of the nullum crimen principle is firmlygrounded in the German, as opposed to Anglo-American, legaltradition.     

社会舆情与刑法运作互动问题研究

随着信息传播的便利,社会舆情可以对刑事裁判的整个过程产生影响。在社会舆情和刑事司法发生冲突的案件中,社会舆情"屡战屡胜",表面上看好似是"公意的胜利",而实质上依然是"正义的胜利"。因为被推翻的刑事判决本身,在法律依据、诉讼程序、定案证据等方面存在各种各样的瑕疵或错误。为了实现刑事司法的公众认同,维护刑事司法的权威性,刑事司法应当做到三点:坚守刑事司法的正当性;加强判决书说理;增强对社会公意的理解。     

Law‐Linked Justice and Existence‐Linked Justice

Abstract. Justice as a manifestation of “the just” is an evasive concept. On the one hand there is the law, an operation run by professionals. On the other hand there are the citizens the law is meant for. Generally speaking the law strives for justice. But the law has to protect many different interests and must work through legal devices. Therefore the justice that emerges from it is necessarily a legal compromise. For the citizens the legal rules are a given reality. Generally they will agree that the law is there to achieve justice but legal arguments that justify a rule or decision cannot have the same value for them. In cases that affect them personally, justice will be a personal, existential experience, which may be incompatible with legal justice. It is hard to keep these two forms of justice under one roof. In order to make this easier this paper proposes a conceptual split between “law‐linked justice” and “existence‐linked justice.” It is argued that the law cannot in truth to its rational origin ignore the citizens’ experience of justice, out of the ordinary as they may be.     

What is procedural justice: Criteria used by Dutch victims to assess the fairness of criminal justice procedures

The study examines the meaning of procedural justice to Dutch victims of crime. Using victimological research and the group-value or relational model or procedural justice developed by Lind and Tyler, a model for procedural justice judgments is developed and tested using the structural equation model. Data used for the analysis consist of 221 interviews with victims regarding their experience with the public prosecution. Although the emerging model differs from that of Lind and Tyler, results support Lind and Tyler's assertion that procedural justice judgments are normative and not instrumental. Victims are particularly concerned about being treated with dignity and respect and are not interested in influencing the outcome of their case.     

法律现实主义与转型社会刑事司法

我国社会正处于转型期,各种社会矛盾凸显,刑事司法面临着新的挑战。西方的法律现实主义能为我国转型期刑事司法提供可资借鉴的方法论和改革思路。法律现实主义运动在批评形式主义与三段论式审判的基础上,把法律看作具有多重目标的社会引擎,关注司法行为、纠纷解决与社会问题。在中国语境下,引入法律现实主义,不是要简单地否定形式主义,而是应理性对待形式主义并在其中融入客观主义;应在刑事司法裁判中适用利益权衡,重视经验归纳而不拘泥于简单的演绎推理;应以实现社会正义为核心,构建合理衔接的多元纠纷解决机制。     

“This case is about you and your future”: Towards Judgments for Children

A handful of ‘child-friendly’ judgments have emerged in the UK in recent years, attempting to adopt a child-centred approach to the decision-making stage of the legal process. Most notable is Sir Peter Jackson's judgment in Re A: Letter to a Young Person which, in taking the form of a letter to the child, has been applauded as a model of how to achieve ‘child friendly justice’. This article examines how and why the form and presentation of judicial decisions is an important aspect of children's access to justice, considering not just the potential but the duty of judges to enhance children's status and capacities as legal citizens through judgment writing. We identify four potential functions of judgments written for children (communicative, developmental, instructive and legally transformative), and call for a radical reappraisal of the way in which judgments are constructed and conveyed with a view to promoting children's access to justice.     

当前司法考试存在的问题与改革方向——以实证法为视角

国家司法考试已经五年了,虽然司法考试在"适当调整、不断完善,"但从总体而言,司法考试的调整和完善并没有取得实质性的突破。本着法律职业的专业化和精英化思路以及司法考试的意义和价值所在,依据现行的法律、规章规定,司法考试应当把握正确的改革方向,借鉴其他大陆法系国家的司法考试经验。严格执行司法考试报名条件,突出考查法律职业能力,增加法律职业技能的专项训练和考核,遴选出具有丰富的法律专业知识、较高的法律职业能力和法律职业技能,以及良好的法律素养和强烈的法律公正意识的法律职业人员,从而促进依法独立行使审判权、检察权,依法履行职责,最终保障司法公正。     

类推适用的私法价值与司法运用

凡制定法皆可能存在法律漏洞,类推适用是在法律对系争事件或说个案存在法律漏洞时的一种漏洞补充方法。类推适用的私法价值既是法律正义价值的体现,也是法律存在漏洞并且必须补充和法官不得拒绝审判原则的必然要求;基于中国的法律文化传统,我国民法典应该确认类推适用的地位并确定具体的规则。     

More on Ultimate and Immanent Justice: Results from the Research Project “Justice as a Problem within Reunified Germany”

In earlier studies it was shown that two domain-specific variates of belief in a just world, namely belief in immanent justice and belief in ultimate justice concerning severe illness, differ systematically and significantly. Only immanent justice leads to accusation and derogation of innocent victims while ultimate justice is concordant with positive evaluations of victims and helping behavior. With regard to the research project Justice as a Problem within Reunified Germany (GiP, from the German Gerechtigkeit als innerdeutsches Problem), two new scales were developed for purposes of measuring general belief in immanent and ultimate justice. Using a sample of 929 West Germans and 1,275 East Germans, some of the correlation patterns found in earlier studies could be replicated. For example, immanent justice did correlate with draconian judgments (the proneness to strict and severe judgments), while ultimate justice was associated with mildness. Only ultimate justice correlated with existential guilt about the underprivileged. Beside this confirmation of earlier findings, new correlation patterns were revealed. For example, only immanent justice correlated with the equity principle, whereas ultimate justice corresponded to the need and equality principles.     

Culture,values, and beliefs about economic justice

We examine the relationship between values and beliefs about economic justice by conducting a cross-cultural analysis. Social values of Americans and West Germans are compared and the relationships between values and beliefs about the fairness of the distribution of business profits are examined. Data are from the 1984 General Social Survey and its West German counterpart, the 1984 ALLBUS; both surveys contain identical value and economic justice items. We find that among citizens in both countries beliefs about the fairness of the distribution of business profits are related to values even when income and education are held constant, but the relationship is stronger in West Germany. For Americans, beliefs about the fairness of the distribution of business profits are related primarily to conservative values (beliefs that greater efforts lead to greater rewards). In addition, the positive influence of conservative values and of income level on fairness judgments is greater for Americans with higher levels of education. For West Germans, beliefs about the fairness of business profits are related both to conservative and to liberal values (beliefs that class divisions persist). In general, economic fairness judgments of West Germans have a strong ideological basis, but polarization associated with differing ideologies is found. Economic fairness judgments of Americans showed both a simpler ideological basis and some relationship to self-interest. The influence of both factors on Americans' fairness judgments seemed to be affected by socialization due to education. Results are discussed in terms of the prevailing economic ideologies in both countries.     

陕甘宁边区高等法院编制判例的实践与经验

出于现实的客观需要,陕甘宁边区高等法院编制了《陕甘宁边区判例汇编》,选编了陕甘宁边区政府审判委员会、陕甘宁边区高等法院、延安市地方法院有代表性的各类判词共计77件.《陕甘宁边区判例汇编》由例言、案件处理办法、判词、选编意见与审定意见等四部分构成,以典型案例的裁判文书为核心,以明晰制定法条文和弥补法律漏洞为宗旨,反映并体现了在特定战争环境和条件下,司法活动在实现社会稳定、平衡成文立法与社会现实脱节中所起的作用.陕甘宁高等法院在判例制度上所进行的创造与探索,对社会变革时期司法功能的有效发挥,具有开拓性的意义.