The role of competition in health care: a Western European perspective

The Federal Trade Commission and Department of Justice 2004 report Improving Health Care: A Dose of Competition expresses a clear allegiance to competition as the organizing principle for health care. In Europe, by contrast, the key organizing principle of health care systems is solidarity. Solidarity means that all have access to health care based on medical needs, regardless of ability to pay. This is not to say that competition is not important in Europe, but competition must take place within the context of solidarity. This article critiques the report from a European perspective, describes the role of competition in Europe (focusing in particular on European Union law), and suggests that the United States could learn from the European perspective.     

论作为社会保障法基础的社会连带

社会连带是社会保障法的基础,它不仅作为一种观念已渗透进社会保障法的合作互助理念和社会权理念;而且,它也作为一种原则体现于法律文件的明确规定和具体制度构建中。不同的社会保障法律制度类型依托不同的社会连带结构,蕴涵不同的社会连带精神。随着社会的演进,社会连带的性质、结构已经或正在发生转型,这也会相应地促进社会保障法的变迁。     

The Principle of Solidarity and Fairness in Sharing Responsibility: More than Window Dressing?

The lack of fairness in asylum responsibility sharing within the EU has been a persistent problem demanding an urgent solution. This article seeks to inform the on‐going debate on European solidarity instruments from a constitutional law perspective by taking the principle of solidarity and fair sharing of responsibility pursuant to Article 80 TFEU as its reference point. The article sees this principle as an important mechanism in both the enhancement of fairness in responsibility sharing and the protection of refugees. It argues that the combined reading of Article 80 TFEU and the Charter of Fundamental Rights provides a strong reason to doubt the constitutionality of the Dublin III Regulation, and any decision reforming the asylum regime should take this view into account. Despite its limited enforceability, Article 80 TFEU can play an important role as an interpretation tool, in particular in the assessment of the legality of solidarity instruments.     

Civil Protection Cooperation in EU Law: Is There Room for Solidarity to Wriggle Past?

This article provides insight into the under‐researched area of civil protection cooperation and disaster response capacity in EU law. It discusses how the mechanisms set up by the EU have assisted Member States in supporting one another when faced with natural or man‐made disasters, including those perpetrated by terrorists. In particular, the article provides a critique of the Article 222 of the Treaty on the Functioning of the European Union (TFEU) clause, which has introduced the principle of solidarity within the EU's security strategy. The author explores the broadened notion of ‘threat’ in Europe and assesses the significance of the Solidarity Clause vis‐à‐vis the level of commitment required by Member States for its coherent implementation. The article then contrasts Article 222 TFEU with the mutual defence clause of Article 42 (7) Treaty on European Union (TEU), and finally points into certain ‘grey areas’ that may have a diminution effect upon the political message concerning the EU as a community based on solidarity.     

Free Movement of Persons and European Solidarity1

Abstract: This article explores the tension between freedom of movement within the EC/EU and the principle of social solidarity, a tension which has increased in step with the progressive enlargement over the years of the circle of potential beneficiaries of the right to cross‐border access to the social and welfare benefits guaranteed by the social protection systems of the Member States. The article aims to re‐construct the system of Community rules regarding the free movement of persons within the EU from the point of view of the justifying criteria for the cross‐border access to national welfare systems of the different categories of ‘migrants’. The focus of the article is on the different degrees and models of solidarity which, at least at the present stage of the European integration process, justify correspondingly graduated and differentiated forms of cross‐border access to Member States' social and welfare benefits for the various categories of persons who move about within the EU.     

Surveying the Foundations: Article 80 TFEU and the Common European Asylum System

The Treaty of Lisbon introduced Article 80 of the Treaty on the Functioning of the European Union (TFEU) which states that the European Union’s asylum policy will be based on the principles of solidarity and the fair-sharing of responsibility. However, no guidance is given as to the nature and content of these principles. This contribution seeks to explore the relationship between these two concepts and to assess the extent and nature of their presence within the Common European Asylum System (CEAS). This contribution begins with an outline of the CEAS and presents its newly-codified foundation, Article 80 TFEU. This reveals that the CEAS may be considered a solidarity mechanism, but that the essential uncertainty as to the meaning of Article 80 is problematic when attempting to gauge the success of the CEAS as an expression of solidarity. The second part considers methods for allocating responsibilities for refugee status determination and protection between states, demonstrating that fair-sharing is both more widely accepted as the basis for solidarity and less problematic than the most common alternative—allocation according to states’ voluntary assumptions of responsibility. The final part explores expressions of fair-sharing within the CEAS and considers its limited success and numerous flaws.     

The Collective Labour Law of the European Union

Abstract: The collective labour law of the European Union is embedded in a variety of legal measures incorporating principles of collective labour law reflecting national experience. The dynamic of its development has been the spill-over effect of these principles, through their translation into the status of EU law, and their development by decisions of the European Court of Justice. The article outlines a framework of principles which, it is argued, are currently embodied in the collective labour law of the EU. They include collectively bargained labour standards, workers' collective representation, workers' participation, and protection of strikers against dismissal. In addition, there is a parallel principle of collective solidarity emerging in the social security law of the EU. The principle of collective negotiation of labour law introduced by the Protocol and Agreement on Social Policy may be seen as the founding constitutional basis for the collective labour law of the European Union.     

Justice Concerns Can Feed Nationalistic Concerns and Impede Solidarity in the Euro Crisis: How Victim Sensitivity Translates into Political Attitudes

We investigated how victim sensitivity and news media exposure conjointly contribute to the formation of political attitudes in the context of the euro crisis. Study 1 (N = 208) showed that observer-sensitive individuals were more likely and victim-sensitive individuals were less likely to support solidarity with countries in need of financial support. These correlations were mediated by affective components of political attitudes, namely nationalistic concerns, resentment about and empathic concerns with debtor countries. In Study 2 (N = 51), using a pre–post within-subjects design, we showed that framing the euro crisis in an ‘exploitation frame” (compared to a ‘solidarity frame’) in news media reports was more likely to trigger nationalistic concerns and, consequently, decrease support of solidarity in victim-sensitive individuals compared to their less victim-sensitive counterparts. These results are in line with the SeMI model and previous findings that victim sensitivity is linked to fear of being exploited in intergroup relations.     

Social Solidarity and the Power of Contract

This article explores what social policy contracts reveal about contemporary forms of social solidarity, and what they tell us about the nature of social cohesion in Western societies today. Taking the workfare contract as its point of departure, and drawing on Emile Durkheim's work, it is argued that social policy contracts disclose elements of mechanical and organic social solidarity. They function in both punitive and restitutive ways, their exclusionary and inclusive features acting as important sources of contemporary social solidarity. By reference to empirical evidence regarding workfare in various countries, the article highlights the importance of structural factors in determining the success of this policy. It is argued that the moralistic nature of the workfare contract, and the forms of social solidarity it expresses, obscures these deeper structural issues, leaving in place the conditions necessary for the persistence of social suffering characteristic of the post‐Keynesian era. The contention is that contract has a de‐politicizing effect in the field of social policy.     

From Workers to Migrants,from Distributive Justice to Inclusion: Exploring the Changing Social Democratic Imagination

There is little awareness that from the perspective of distributive justice, a transnational market society exercises a justice‐disabling effect. No longer is society perceived to be a system of co‐operation, the net product of which is to be distributed among all participants fairly, but rather viewed as a composite of uncoordinated templates for the individual pursuit of opportunities. A society of this type does no longer regard a centralised political effort at redistribution as its essential objective; rather, its most fundamental principle concerns equal access to opportunities without regard to nationality or local preference. Such a concern with inclusion appears to be at odds with the received vision of distributive justice whose realisation presupposes bounded solidarity and, hence, closure.     

Lilac? ‘Ten years of blue nurtured nature’

Abstract

The paper seeks to determine whether indicators evincing attitudes of police culture themes of solidarity, isolation and cynicism amongst SAPS officials are gender neutral as well as change in relation to Van Maanen’s and Manning’s stages of police culture socialisation. Using a survey format, the researcher employed a longitudinal design. The study established that SAPS cadets that commenced their basic training at the six SAPS basic training institutes in January 2005, entered the organisation with predispositions in furtherance of solidarity, isolation and cynicism. The period of ‘college/academy training’ (January to June 2005) did not significantly counteract these tendencies, neither the subsequent ‘field training’ (July to December 2005). Nine years on, and these attitudes intensified. The study further found that for the duration of the project (10 years), female trainees and their conversion to fully-fledged police officials had mostly stronger values exhibiting solidarity, isolation and cynicism, compared to their male counterparts.     

The Sinews of Peace: Rights to Solidarity in the Charter of Fundamental Rights of the European Union

Abstract. This article examines the provisions on social and economic rights contained in the Charter of Fundamental Rights of the European Union. After a conceptual clarification of the terms “fundamental rights” and “rights to solidarity,” three main claims are made. First, not all rights to solidarity are granted the status of fundamental rights in the Charter, in contrast with the treatment of the right to private property. Second, positive law does not justify such an approach. An analysis of the sources of the Charter clearly indicates that the right to private property is not a proper fundamental right as Community law stands. Third, rights to solidarity could be construed as a repository of arguments that Member States and regions could invoke when claiming an exception to the four fundamental freedoms.     

Sanctioning risky life-styles: Attitudes toward solidarity or equitable distribution of health care

Rising costs of medical care and increasing knowledge about behavior-related health risks favor the use of the equity principle in health care allocation. This paper deals with attitudes to the question of whether or not one's payments should be contingent upon the risks one takes. From an explorative analysis of arguments espoused by letter writers from a Dutch health magazine, it becomes apparent that equity plays a major role in the respondents' views of the distribution of health care facilities. Next, the role of attribution in adopting attitudes toward risky life-styles is studied on the basis of a survey using a representative sample of Dutch households. Beliefs about the individual ability to influence health have no effect on risk solidarity, whereas beliefs about the proper amount of effort to avoid health risks do have an effect.     

雇主不当劳动行为的民事救济——基于我国和美国不当劳动行为救济制度之比较

我国《工会法》第52条规定的责令雇主承担不当劳动行为的民事责任,与美国《国家劳资关系法》第10(c)条的规定看起来很相似,相比之下,这一规范在美国劳动法的实践中很有效,在我国却极少被适用,解释方面也存在较大的分歧。美国是世界上最早创设不当劳动行为救济制度的国家,从《瓦格纳法》规定的雇主不当劳动行为的禁止规范及救济措施,到《塔夫托—哈特莱法》将适用对象扩大到工会和雇员,在雇用自由原则和劳资自治模式的背景下,其演变始终以保护雇员团结权的松紧程度和收放态度为线索。我国《工会法》现正处于第三次修改阶段,适时检讨第52条的解释和适用的障碍,还可以解决其与《劳动合同法》规范的竞合问题。     

Justice as solidarity: A study of the political socialization of adolescents from East and West Germany within the theoretical framework of Durkheim's sociology of morality

The contemporary transformations in western societies confront us with a problem already stated by Durkheim a century ago: What enables members of society to practice social solidarity while becoming increasingly more individualistic? This question is analyzed in view of the political socialization of adolescents and its developmental implications. In line with the Durkheimian tradition in developmental psychology established by Piaget and elaborated by Kohlberg, it is claimed that the development of moral autonomy gives rise to a justice-related sense of responsibility that may foster bonds of solidarity within society. This developmental model was tested against the impact of socialization variables in a sample of East and West Germany adolescents, aged 15 and 18 (N=348). Analyses of the data revealed a substantial relationship between the development of moral autonomy and the readiness to take responsibility for others in response to justice concerns. The impact of the development of moral autonomy on the formation of a justice-related sense of responsibility depended only minimally on background indicators of political socialization in adolescence (e.g., East or West German origin, the socioeconomic status of parents). In the context of current social conditions a developmental approach to political socialization appears crucial to explain the emergence of justice concerns giving rise to solidarity.     

The Rule of Reason in European Citizenship

Abstract:  This article reviews the European Court of Justice's case-law on European citizenship in the light of aspects of the rights theories of Ronald Dworkin and Robert Alexy. More specifically, the free movement right in Article 18(1) EC is conceptualised as a Dworkinian principle and as a prima-facie right or 'optimisation precept' in Alexy's sense. Against this backdrop the article argues that Article 18(1) can best be interpreted by drawing an analogy with the economic free movement provisions. The central argument is that the rule of reason also applies to European citizenship, or that there is a rule of reason in European citizenship. The analogy encompasses both the definition of the scope of Article 18(1) and its limitations. With regard to the latter, it is contended that there is no conceptual distinction between the 'limitations' and 'conditions' referred to in that provision. Particular emphasis is placed on the recent case-law concerning the question of access to welfare benefits. In this regard it is suggested that the notion of a 'structural link' constitutes both a threshold criterion to trigger the prima-facie right in Article 18(1) as well as a benchmark for assessing the degree of solidarity owed to the migrant citizen. The rule of reason approach leads to the stipulation of a thin, juridical conception of European citizenship that does not rely in any way on thick, essentialist properties.     

“哀其不幸,怒其不争”新读——以农民工媒介形象为例

媒介歧视现象破坏了媒体客观、公正的报道原则,给大众造成了认知上的混乱。农民工的产生为社会提供了大量的媒介资源和新闻源。大众传媒作为社会系统的一个子系统怎样应对值得深思:它既可以产生出以人文关怀为主的大众传媒的新语境,也可能由于某种利益的驱使,出现标签化、概念化污名化的现象。如何确立和保持人的尊严?如何寻找失落的自我?无论怎样,人的关怀都应是一个现代社会的基本品格。为了社会的安定和谐,为了全民素质的提高,亦为了利益最大化的实现,媒介有不可推卸的责任,我们应当对此作出理性选择。     

论法律的社会团结功能

法律的社会团结功能,指恰当地组织各种社会要素为良性循环系统的功能。具体表现为制度安排、组织社会、亲密关系。法律的团结功能,决定于轻刑、程序发达、社团发达、刚性执行、精巧统一的法律结构。宪法和部门法各有其特殊的团结功能,如宪法有阶级团结功能、民族团结功能和公民团结功能。