哈耶克论秩序、正义与自由

哈耶克认为,社会中有自生自发秩序和组织两种秩序存在,但只有自生自发秩序有助于人类的生存与发展,并保证人的自由。如果为了"社会正义",采用人为的原则干预自生自发社会秩序,只能导致自由的丧失。     

三位一体的人类合作之扩展秩序——哈耶克的自生自发秩序原理之述评

在哈耶克的社会发展观中,中心论题是人类合作之扩展秩序,这个秩序又被归结为自生自发秩序,而自生自发秩序由三个基本要素构成:自由、竞争和规则,其基本含义就是在一般性规则之下通过社会主体之间的自由竞争以推进社会秩序的演化。其中,自由是核心,竞争和规则都是建立在自由的基础之上,因而三者在某种程度上又是等同的,共同构成了一个三位一体的自生自发秩序理论。同时,哈耶克强调的竞争是基于自由市场的竞争,规则则是基于一般契约的法律,哈耶克毕生都在阐发市场竞争和抽象法律这两个基本机制是如何保障自生自发的社会秩序不断扩展的,因此,哈耶克的扩展秩序研究体系又可形象地归结为:一个中心,两个基本点,它为我们理解哈耶克的社会发展观以及探究社会秩序的扩展基础等问题提供了基本分析框架。     

浅析哈耶克的自由主义思想

"自生自发秩序"这一概念是由冯.哈耶克在其一系列著作中归纳论述。哈耶克的自由主义思想对中国现阶段及未来的发展具有一定理论和现实意义,通过在哲学、法理学、经济学、政治学等层面宏观的理论把握,在此基础上进一步洞见哈耶克自由主义思想,从中辨析自由建构逻辑,内容取向。     

论中国法治秩序的建构——读哈耶克《自由宪章》有感

本文通过对哈耶克自由主义框架下的"社会秩序规则二元观",即内部规则和外部规则的关系的考察,指出了其严格意义上的法律和立法的差异性,进而阐释其理论的核心内容——"自生自发秩序"原理,及其对中国法制现代化的现实意义。     

NGO的民间治理与转型期的法治秩序

NGO的民间治理对转型中国具有重大意义,它不仅与国家法秩序形成了耦合支撑、多元均衡、共谋与冲突等互动和张力状态,而且,还赋有反思性的对话协调机制、公民性社会资本的生成机制、公共领域的运行机制、自生自发秩序的衍生机制等秩序生发机制,从而为法治秩序提供了重要基础和支撑。因此,应克服NGO民间治理中的中国问题,推动其功能和作用的充分发挥,进而促进法治秩序的早日确立。     

论自生自发秩序与我国法治建设——读哈耶克的《法律、立法与自由》有感

作为哈耶克自由主义理论中核心概念的"自生自发秩序",它对西方资本主义经济的高速发展曾经起过推波助澜的作用,本文对其内涵、优势、弊端一一作出阐述,并指出其对今天正在大力进行社会主义市场经济建设、民主法治建设和市民社会建设的中国来说,无疑具有一定的借鉴作用。     

网络时代的版权默示许可制度——两起Google案的分析

随着网络技术的发展,默示许可正在成为一种实践,尤其是Google等搜索引擎在搜索、索引、缓存网站时适用的就是"默示许可".首先分析了与Google相关的两起涉及默示许可的典型案例.面对网络的开放性与版权的封闭性之间的冲突,从技术、法律、社区规则之间的张力入手,承认网络社区的"自生自发秩序",建议在法律上将实践中形成的默示许可确立为一种法定权利限制.     

早期普通法中的司法治理与自发秩序——以“新近侵占之诉”为例

在中世纪的西欧,出现了以英格兰普通法为代表的司法治理模式。以"新近侵占之诉"为例,本文试图具体展现早期普通法司法治理的运作轨迹及其演进秩序。尽管最初只是恢复"王之和平"的临时"刑事"措施,但在经历数次尝试后,新近侵占土地之诉逐渐发展成为常规治理手段和"民事化"的诉讼形式;并凭借诉讼效率与公正的优势,赢得与领主法庭管辖权竞争的胜利,确立了王室法庭对于"民事"案件的普遍管辖权。这一过程也生动展示了贯穿于普通法司法治理中的自生自发秩序。     

英国宪章的普通法特色:《克莱伦敦宪法》(1164)中的自生秩序

《克莱伦敦宪法》在本文中用以阐释英国宪章的普通法特色。尽管在其修订后不久就被正式地背弃与废除，《克莱伦敦宪法》依然是教会与国家分离的基石所在。对这份历史文本的分析揭示出，自生自发的秩序包含着多种成文法与刻意设计的规则。本文描绘了普通法中自生自发秩序的出现、界定，并将其与成文法进行了比较。自生自发的秩序使得世俗社会成长、繁荣起来。人们认为，宪章虽在成文法的制定上扮演着次要的角色，却是现代立法机构的前驱。本文也讨论了成文法以及自然演进的规则的适用对经济效率的影响。文中展现了《克莱伦敦宪法》的历史背景及其影响，并且也从经济学的视角讨论与分析了文本的内容。《克莱伦敦宪法》所提出的一个关键性的法律问题乃是世俗法律与教会法的对抗性的管辖权关系，这种关系承受着内在的利害冲突的紧张。这就为经济问题的决策者提供了不正当的动机。早在《克莱伦敦宪法》颁布之前，教会已经在市民社会争议中成功地扮演过既是原告又是裁判者的角色，并且通过行使刑事管辖权来威胁对方当事人。最后，我们将探讨《克莱伦敦宪法》，并且将其作为自发演进法律的典型展示出来，它极大地促进了企业家的自由和提升了经济效率。     

自生自发的秩序?——哈耶克自由理路的迷思

哈耶克对自由秩序的论证其基本立场在于对唯理主义的批判,其理路是主张“否定性自由”。虽然哈耶克力图将英国式的经验主义与其反唯理主义的立场融合,但历史与现实的错综复杂性使得这种理路难以解释所有的社会冲突。哈耶克对自由理路的贡献除了其对于自由立场的坚定捍卫以外,还在于其从自生自发秩序入手而对制度所作的稳健、温和的建构,哈氏理路的这种建构性对于我们现实的法制建构具有借鉴意义。     

Bhartṛhari and Maṇḍana on Avidyā

The concept of avidyā is one of the central categories in the Advaita of Śaṇkara and Maṇḍana. Shifting the focus from māyā, interpreted either as illusion or as the divine power, this concept brings ignorance to the forefront in describing duality and bondage. Although all Advaitins accept avidyā as a category, its scope and nature is interpreted in multiple ways. Key elements in Maṇḍana’s philosophy include the plurality of avidyā, individual selves as its substrate and the Brahman as its field (viṣaya), and the distinction in avidyā between non-apprehension and misapprehension. A closer investigation shows that Maṇḍana is directly influenced by Bhartṛhari’s linguistic non-dualism in developing the concept of avidyā. This study also compares other key constituents such as vivartta and pariṇāma that are relevant to the analysis of avidyā. As the concept of counter-image (pratibimba) emerges as a distinct stream of Advaita subsequent to Maṇḍana, this study also compares the application of pratibimba in the writings of Bhartṛhari and Maṇḍana.     

Immigration,intermarriage and the changing face of Europe in the post war period

In this article we compare the propensity to intermarry of various migrant groups and their children who settled in Germany, France, England, Belgium and the Netherlands in the post-war period, using a wide range of available statistical data. We try to explain different intermarriage patterns within the framework of Alba and Nee's assimilation theory and pay special attention to the role of religion, colour and colonial background. We therefore compare colonial with non colonial migrants and within these categories between groups with ‘European’ (Christian) and non-European (Islam, Hinduism) religions. First of all, religion appears to be an important variable. Migrants whose faith has no tradition in Western Europe intermarry at a much lower rate than those whose religious backgrounds correspond with those that are common in the country of settlement. The rate of ethnic endogamous marriages in Western Europe are highest in Hindu and Muslim communities, often regardless if they came as guest workers or colonial migrants. Whereas differences in religion diminish the propensity to intermarry, colour or ‘racial’ differences on the other hand seem to be less important. This is largely explained by the pre-migration socialisation. Furthermore, the paper argues that the attention to institutions, as rightly advocated by Richard Alba and Victor Nee, needs a more refined and layered elaboration. Institutions, often as barriers to intermarriage, do not only emanate from the receiving society, but also—be it less formalized—within migrant communities. Especially religions and family systems, but also organized nationalist feelings, can have a profound influence on how migrants think about endogamy. Finally, strong pressures to assimilate, often through institutionalized forms of discrimination and stigmatization, not only produce isolation and frustrate assimilation (with resulting low intermarriage rates), but can also stimulate assimilation by 'passing' mechanisms. These factors, together with a more comparative perspective, are not completely ignored in the new assimilation theory, but—as this study of Western European intermarriage patterns stresses—deserve to be included more systematically in historical and social scientist analyses.     

Unraveling the <Emphasis Type="Italic">Kāvyaprakāśa</Emphasis>: Jayadeva Pīyūṣavarṣa’s idiosyncratic sequence of topics in the <Emphasis Type="Italic">Candrāloka</Emphasis>

In his twelfth century alaṃkāraśāstra, the Candrāloka, Jayadeva Pīyūṣavarṣa reverses the sequence of topics found in Mammaṭa’s Kāvyapr-akāśa, an earlier and immensely popular work. With such a structural revisionism, Jayadeva asserts the autonomy of his own work and puts forth an ambitious critique of earlier approaches to literary analysis. Jayadeva investigates the technical and aesthetic components of poetry in the first part of the Candrāloka, prior to his formal semantic investigations in the latter half of the text, thus suggesting that aesthetic evaluations of poetry beneficially inform scientific investigations of language. Jayadeva’s organization of his chapters on the semantic operations, moreover, intimates that the study of suggestive and metaphoric functions of language clarifies our understanding of denotation, which is conventionally understood to be the primary and direct path of verbal designation.     

Illumination,Imagination, Creativity: Rājaśekhara,Kuntaka, and Jagannātha on <Emphasis Type="Italic">Pratibhā</Emphasis>

Sanskrit poeticians make the visionary faculty of pratibhā a necessary part of the professional poet’s make-up. The term has a pre-history in Bhartṛhari’s linguistic metaphysics, where it is used to explain the unitary perception of meaning. This essay examines the relation between pratibhā and possible theories of the imagination, with a focus on three unusual theoreticians—Rājaśekhara, Kuntaka, and Jagannātha Paṇḍita. Rājaśekhara offers an analysis of pratibhā that is heavily interactive, requiring the discerning presence of the bhāvaka listener or critic; he also positions pratibhā in relation to Bildung (vyutpatti) and practice. For Kuntaka, pratibhā, never an ex nihilo creation by a poet, serves as the basis for the peculiar forms of intensified insight and experience that constitute poetry; these may also involve the creative scrambling and re-articulation of the object in terms of its systemic composition. At times, Kuntaka’s pratibhā comes close to a strong notion of imaginative process. But the full-fledged thematization of the imagination, and of pratibhā as its support and mechanism, is best seen in the seventeenth-century debates preserved for us by Jagannātha. A link is suggested between the discourse of poetic imagination in Jagannātha and similar themes that turn up in Indo-Persian poets such as Bedil.     

Preventing Homelessness for System‐Involved Youth

Too many youth and young adults find themselves on the streets, couch‐surfing with friends, in emergency shelters or worse, after exiting the child welfare and juvenile justice systems. In some circumstances, youth have had court hearings until their exit from the legal system, but those hearings have not focused on long‐range plans of youth and emergencies youth may encounter. In other circumstances, there has been little or no planning prior to discharge, especially for young people who leave the juvenile justice system. Courts can and should prevent, alleviate or end youth homelessness for youth who appear before them through strategies that are enumerated in the recently‐passed NCJFCJ resolution. This article expounds on three of these strategies – coordinating transition and re‐entry plans, insisting on effective legal representation of youth, and utilizing sound judicial leadership. It also describes the concurrent efforts of the Coalition for Juvenile Justice and the American Bar Association's Homeless Youth Legal Network to remove legal barriers and improve outcomes for youth and young adults experiencing homelessness.     

Best practices for structuring a family court parenting plan evaluation under the 2022 AFCC Guidelines

Evaluation appointment orders provide enforceable scaffolding for conduct of family court parenting plan evaluations, and use of the evaluator's reports, feedback, file, and testimony. Unlike a contract, a stipulated or adjudicated appointment order is directly enforceable by the family court. It unambiguously positions the evaluator as the family court's appointee – answerable directly to the court and, in some jurisdictions, protected by quasi-judicial immunity from damages claims. A well-crafted appointment order governs the roles and expectations of the court, the evaluator, the parties, the lawyers, and the collateral witnesses. An appointment order mandates the legal duties, rights, powers, and responsibilities of the professionals, the parties, and the collateral witnesses. At minimum, an appointment order articulates the legal basis for the appointment, the purpose and scope of the evaluation, compensation of evaluator, and the duty of the parties to participate in the process. A written evaluation protocol or procedures statement discloses in advance the methods of investigation and assessment that the evaluator intends to use. Together, the appointment order and written protocol help the evaluator, lawyers, parents, and judge manage the complexity of the evaluation process.     

The Supreme Array Scripture: A New Interpretation of the Title “Gaṇḍavyūha-sūtra”

This article argues for a new interpretation of the Sanskrit compound gaṇḍa-vyūha as it is used in the common title of the Mahāyāna text the Gaṇḍavyūha-Sūtra.The author begins by providing a brief history of the sūtra’s appellations in Chinese and Tibetan sources. Next, the meanings of gaṇḍa (the problematic member of the compound) are explored. The author proposes that contemporary scholars have overlooked a meaning of gaṇḍa occurring in some compounds, wherein gaṇḍa can mean simply “great,” “big” or “massive.” This general sense is particularly common in the compound gaṇda-śaila (a “massive rock” or “boulder”) and is found in such texts as the Bhāgavata Purāṇa, the Harivaṃśa and the Harṣacarita. Following the discussion of Gaṇḍa, the author examines the term vyūha (“array”) as it is used in the Gaṇḍavyūha-sūtra. The article concludes with the suggestion that a more appropriate translation of the Gaṇḍavyūha-sūtra would be “The Supreme array Scripture.”     

Evaluation of six presumptive tests for blood, their specificity, sensitivity, and effect on high molecular-weight DNA

Luminol, leuchomalachite green, phenolphthalein, Hemastix, Hemident, and Bluestar are all used as presumptive tests for blood. In this study, the tests were subjected to dilute blood (from 1:10,000 to 1:10,000,000), many common household substance, and chemicals. Samples were tested for DNA to determine whether the presumptive tests damaged or destroyed DNA. The DNA loci tested were D2S1338 and D19S433. Leuchomalachite green had a sensitivity of 1:10,000, while the remaining tests were able to detect blood to a dilution of 1:100,000. Substances tested include saliva, semen, potato, tomato, tomato sauce, tomato sauce with meat, red onion, red kidney bean, horseradish, 0.1 M ascorbic acid, 5% bleach, 10% cupric sulfate, 10% ferric sulfate, and 10% nickel chloride. Of all the substances tested, not one of the household items reacted with every test; however, the chemicals did. DNA was recovered and amplified from luminol, phenolphthalein, Hemastix, and Bluestar, but not from leuchomalachite green or Hemident.     

<Emphasis Type="Italic">Anyathākhyāti</Emphasis>: A Critique by Appaya Dīkṣita in the <Emphasis Type="Italic">Parimala</Emphasis>

In this paper, the problem of illusory perception, as approached by the Nyāya and Advaita Vedānta schools of philosophy, is discussed from the standpoint of the Parimala. This seminal work belonging to the Bhāmatī tradition of Advaita Vedānta was composed in the sixteenth century by the polymath Appaya Dīk?ita. In the context of discussing various theories of illusion, Dīk?ita dwells upon the Nyāya theory of anyathākhyāti, and its connection with jñānalak?a?apratyāsatti as a causal factor for perception, and closely examines if such an extraordinary (alaukika) perception is tenable to explain illusory perception. He then proceeds to point out the deficiencies of this model and thereby brings to the fore the anirvacanīyakhyāti of Advaitins as the only theory which stands scrutiny.     

Monks Who Have Sex: Pārājika Penance in Indian Buddhist Monasticisms

In the study of Buddhism it is commonly accepted that a monk or nun who commits a pārājika offence is permanently and irrevocably expelled from the Buddhist monastic order. This view is based primarily on readings of the Pāli Vinaya. With the exception of the Pāli Vinaya, however, all other extant Buddhist monastic law codes (Dharmaguptaka, Mahāsāṅghika, Mahīśāsaka, Sarvāstivāda and Mūlasarvāstivāda) contain detailed provisions for monks and nuns who commit pārājikas but nevertheless wish to remain within the saṅgha. These monastics are not expelled. Rather, they are granted a special status known as the śikṣādattaka. In this paper I explore the rules. concerning pārājika penance and the śikṣādattaka with specific regard to monastic celibacy. Given that five out of six extant law codes recognise this remarkable accommodation to the rule of celibacy, I argue that we must look to Vinayas other than the Pāli Vinaya if we are to arrive at a nuanced and representative view of Indian Buddhist monasticism.

Grant me chastity and continence, but not yet. Augustine of Hippo (354–430 C.E.)