论以人为本法律观与行政立法模式的创新

以人为本法律观是一种关注民生、立足人权保障的科学发展观。它不仅是我国进行法治建设的理论基础,也是行政立法应遵循的基本价值准则。以人为本,必然要求行政立法对人的存在予以重视,对人的价值予以关注,对人的权利予以保护,对人的命运予以关怀,保障和促进人的全面发展。     

从科学发展观到科学改革观

按照"改革、发展、稳定三者统一"的原则,"以人为本"的科学改革发展观必然引出"以人为本"的科学改革观.科学改革观要求中国的改革必须合规律,即合乎人类社会发展的一般规律和中国近现代社会运动的特殊规律;又必须合目的,即以人民的共同富裕和全面发展为价值导向."以人为本"的科学改革观,包括改革目的、思路和动力三个方面的深刻内涵.为了坚持贯彻这一改革观,需要对党的思想路线作出再认识,既要反对对马克思主义文本搞教条主义,也要反对对西方的经济政治思想搞教条主义.     

中央苏区立法实践的探索及启示

坚持为民立法,切实保障人民民主权利 二十世纪二三十年代的旧中国,仍处在帝国主义、封建主义、官僚资本主义的三重压迫之下,人民的生存权利都得不到保障,更谈不上民主政治权利.人民的基本权利特别是民主政治权利,既要靠组织人民开展革命斗争来争取,又要靠通过革命建立的人民政权的立法来保障.毛泽东同志在率领红军创建井冈山革命根据地和中央苏区的伟大实践中,一方面通过军事斗争摧毁国民党反动派和地主土豪的武装力量和地方政权,另一方面则通过人民民主选举建立新型的人民政权,并广泛开展"打土豪分田地"运动,给农民以实际利益.     

坚持以科学发展观引领立法工作

科学发展观不仅是我国经济社会发展的重要指导方针,也是立法工作的重要指导方针。立法工作必须以科学发展观为指导,坚持"以人为本"的立法原则,将坚持党的领导、人民当家作主和依法治国三者有机结合起来。本文拟结合立法工作实践,探析立法为什么要坚持以及如何坚持以人为本的科学发展观。     

论行政立法参与权的权能

行政立法参与权在我国已经成为社会公众的一项法定权利,但有关其权利内容的研究并不充分。目前在立法规定及理论认识上都将其局限为是提出立法意见、建议的权利,这削弱了它应有的作用。从公众参与行政立法的目的以及实现目的所必需的手段来思考,行政立法参与权在应然层面至少应包括四项权能内容,即"进入行政立法程序的权利"、"提出立法意见的权利"、"立法意见得到回应的权利"和"合理意见获采纳的权利"。行政立法参与权只有具备上述内容的权利功能,才能有效保障行政立法体现人民的意志。我国现行立法需要完善对行政立法参与权上述权能内容的规定。     

孙谦：完善刑事诉讼制度体系 为构建社会主义和谐社会服务

刑事诉讼法的发展完善要坚持以人为本，全面贯彻科学发展观，通过完善刑事诉讼制度体系为构建社会主义和谐社会服务。刑事诉讼制度的科学构建要特别关注四点：一是在立法的价值取向上，要更加突出“以人为本”的理念。刑事诉讼制度的修改，要坚持在人民基本利益一致的基础上关心每个人的利益和要求，更加尊重人的价值和尊严，将社会主义的人道关怀、人文关怀等品格渗透到立法中。     

统筹经济社会发展的几个立法问题

坚持以人为本的科学发展观,以法律统筹城乡发展、统筹区域发展、统筹经济社会发展、统筹人与自然和谐发展、统筹国内发展和对外开放,标志着中国的立法(法治)进入了一个全面发展的新阶段。以立法统筹经济社会发展,是落实科学发展观、构建和谐社会的重要方面,应当树立全面协调发展的立法观念,统筹经济立法与社会立法,统筹经济社会发展与经济社会权利保障,统筹经济社会立法与整个法律体系的协调发展,统筹经济社会立法与法律实施。     

从四个方面着手确保以人为本在检察要作中贯彻

坚持以人为本、人民利益至上.是检察工作的根本要求,也是职责所在.当前,要抓好以人为本、在检察工作中体现和贯彻人民利益至上,必须从四个方面着手. 首先,要在指导思想上突出以人为本.要把人民满意作为检察工作的最终标准,把维护人民权益作为检察工作的根本出发点和落脚点,着力解决人民最关心、最直接、最现实的利益问题,依法保障宪法和法律赋予人民群众的政治、经济、文化、社会等各项权利.要把民生司法落实到每一个检察工作环节,使改善民生的要求在检察工作中更好地得以落实,使检察工作真正符合人民的新要求新期待.     

刑事被害人权利保障比较研究

我国新刑事诉讼法赋予被害人以当事人的主体地位,并赋予其更加广泛的诉讼权利,但在其权利保障方面,立法上仍有缺陷,故对被害人权益进行保障,缩小与国际标准的差距,应当根据被害人人权保障的国际标准,结合我国刑事立法的现状,构建我国的被害人权益保障机制,完善被害人的诉讼权利,同时加强对被害人的社会关怀。     

论民事权利的内容与行使的限制——兼议我国《民法总则(草案)》相关规定的完善

民法借助于民事权利的管道而赋予人民以权利或私权,由此,包括民法总则在内的整个民法典成为权利的法和人民的权利宣言.20世纪以来,对民事权利的内容与行使加以限制及规定权利的私力救济成为各国的普遍做法,我国现今也产生了这些方面的客观需要.我国《民法总则(草案)》未对此等内容予以规定,是立法上的重要缺漏,应予弥补.民法主要经由公共利益(社会福祉)原则对民事权利的内容予以限制,并通过公共利益(社会福祉)原则、诚实信用原则及权利滥用的禁止原则等限制民事权利的行使.为了保障民事权利,立法宜允许私力救济,即正当防卫、紧急避险和自助行为,其中前两者为自卫行为,后者为自力救助.     

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.     

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.     

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.     

Turning a Madhyamaka Trick: Reply to Huntington

Huntington (2007); argues that recent commentators (Robinson, 1957; Hayes, 1994; Tillemans, 1999; Garfield and Priest, 2002) err in attributing to Nāgārjuna and Candrakīrti a commitment to rationality and to the use of argument, and that these commentators do violence to the Madhyamaka project by using rational reconstruction in their interpretation of Nāgārjuna’s and Candrakīrti’s texts. Huntington argues instead that mādhyamikas reject reasoning, distrust logic and do not offer arguments. He also argues that interpreters ought to recuse themselves from argument in order to be faithful to these texts. I demonstrate that he is wrong in all respects: Nāgārjuna and Candrakīrti deploy arguments, take themselves to do so, and even if they did not, we would be wise to do so in commenting on their texts.     

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.”     

The Mūlāvidyā Controversy Among Advaita Vedāntins: was Śaṅkara Himself Responsible?

The concept of avidyā or ignorance is central to the Advaita Vedāntic position of Śȧnkara. The post-Śaṅkara Advaitins wrote sub-commentaries on the original texts of Śaṅkara with the intention of strengthening his views. Over the passage of time the views of these sub-commentators of Śaṅkara came to be regarded as representing the doctrine of Advaita particularly with regard to the concept of avidyā. Swami Satchidanandendra Saraswati, a scholar-monk of Holenarsipur, challenged the accepted tradition through the publication of his work Mūlāvidyānirāsaḥ, particularly with regard to the avidyādoctrine. It was his contention that the post-Śaṅkara commentators brought their own innovations particularly on the nature of avidyā. This was the idea of mūlāvidyā or ‘root ignorance’, a positive entity which is the material cause of the phenomenal world. Saraswati argues that such an idea of mūlāvidyā is not to be found in the bhāṣyas (commentaries) of Śaṅkara and is foisted upon Śaṅkara. This paper attempts to show that although Śaṅkara may not have explicitly favoured such a view of mūlāvidyā, his lack of clarity on the nature of avidyā left enough scope for the post-Śaṅkara commentators to take such a position on avidyā.     

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.     

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.