经济法“国家干预”法律机制的探讨

为应对席卷全球的金融危机,世界各国政府对市场经济采取了各式各样的干预手段,使国家干预成为当今最热门的话题,其重要性勿庸质疑。经济法作为国家干预市场经济的法律规范,应具有其固有的法律价值和规范模式。文章通过对经济法语境下＂国家干预＂内涵的分析,从经济法律规范的逻辑设计和规范结构剖析经济法对＂国家干预＂的规范模式。     

论行政程序正当性的宪法规范基础--以规范实证分析为视角

一国的宪法是支撑行政程序正当性的规范基础.从世界范围看,作为支撑行政程序正当性的宪法规范主要有三种表述即"正当法律程序"、"法律(定)程序"和"法律规定".我国现行宪法虽然没有直接为行政程序正当性提供规范依据,但是我们可以从"主体参与"和"法治国家"的宪法规范表述中,获得行政程序正当性在宪法规范上的逻辑起点.     

Legal System and Practical Reason. On the Structure of a Normative Theory of Law*

Abstract
It will be argued, firstly, that there is a link between the legal validity of a norm and the rational justifiability of a requirement that judges should apply this norm, based on a normative conception of legal validity and the postulate that judges should act as rational persons; secondly, that rational justifiability of legal norms requires the construction of a legal system in a model of principles that differs from theories, e.g., of Kelsen, Hart, Dworkin and Alexy, which are not fully adequate for a normative conception of law.     

On the Nature of Norms

This paper deals with the question of how norms are to be conceived of in order to understand their role as guidelines for human action within various normative orders, particularly in the context of law on the one hand and conventional morality on the other. After some brief remarks on the history of the term “norm,” the author outlines the most significant general features of actually existing social norms, including legal and conventional norms, from which he arrives at two basic requirements on an appropriate conception of such norms: the actuality and the normativity requirements. On this basis, he enters into a critical discussion of Kelsen's highly influential view of norms, arguing that this view is doomed to failure. In the last part of the paper, the author scrutinizes the more promising “practice theory of norms” by H.L.A. Hart, which, in his view, also suffers from some shortcomings, but may be modified in a way that leads to a conception of social norms providing us with a plausible explication of their actual existence and their normative force.     

重大公共卫生事件下的刑事政策模式

坚持道德理性而否认规范理性,或者主张规范理性而排斥道德理性,都是有失偏颇的。规范目的与整体法秩序目的是两种不同层次的目的,两者互补互济、相辅相成,能有效衡平社会伦理道德与刑法规范的关系,并使刑法适用保持活性与弹力,充分迎合司法实践需要。信守规范目的而忽视整体法秩序的刑事政策,有时不利于维护社会共同体利益。信奉整体法秩序目的而忽视规范的刑事政策,可能不利于保护共同体成员的个人权益。重大公共卫生事件下,传统刑事政策面临诸多困境,应贯彻刑事政策发展模式。刑事政策发展模式要求正当事由得到现实化延伸,合理调适定罪量刑标准,扩展刑法解释体系范畴。刑事政策发展模式下,需要严控适用范畴,合法约束模糊管理,有效限制道德理性和规制辩证逻辑。     

Geoengineering governance-by-default: an earth system governance perspective

Geoengineering—the deliberate interference in the climate system to affect global warming—could have significant global environmental and social implications. How to shape formal geoengineering governance mechanisms is an issue of debate. This paper describes and analyses the geoengineering governance landscape that has developed in the absence of explicit geoengineering regulation. An Earth System Governance perspective provides insight into the formation of norms resulting from an overlap in international treaties and from the actions of engaged non-state agents. Specifically, the paper explores the instruments and actors having effect in existing formal and informal geoengineering governance mechanisms. It finds that geoengineering is subject to a form of ‘governance-by-default’. This is due to a situation in which state actors have not resolved the tension between two legal norms: that of ‘precaution’ and that of ‘harm minimisation’. This governance-by-default is characterised by uneven regulation from existing multilateral agreements established for other purposes, an absence of regulation specifically focused on geoengineering, guidance from an international ambition to hold global average warming below 2 °C and to achieve net-zero emissions in the second half of the century, and strong normative engagement by the research community. Governance-by-default is likely to be a stopgap development until more enduring and focused governance emerges.     

Sources,Recognition and the Unity of the Legal System

A critical analysis of Kelsen’s theory leads to a broad concept of custom, which covers diverse types of customary norms, where the always required conviction of legal bindingness depends on different types of factual and normative reasons. In it we should include a strict concept of custom or legal usage, derogating custom, custom of general international law, custom that establishes an unwritten constitution, custom that establishes a new written constitution, judicial custom which creates a rule of precedent and custom newly expressed in the judicial application of customary rules. The basic norm could be formulated as a constitutive norm: ‘If the norms created through the first historical constitution are effective, then the first historical constitution (and all the norms derived from it) are valid.’ It is thus a customary constitutive rule that recognizes the first historical constitution as valid law. Norms which establish sources of law are constitutive rules, they can be customary norms or legislated norms, but if they are legislated, they have their validity recognized by, directly or indirectly, a constitutive customary norm. By using a broad concept of custom as a conventional practice, Hart implies that general recognition of a customary rule, together with the practice that accompanies it, are sufficient conditions of validity. A doctrine of recognition that is arrived at by means of criticism and a rational reconstruction of the doctrines of Kelsen and Hart regains the essential theses of the traditional recognition theory of Bierling and Engisch.

     

Linguistic Objectivity in Norm Sentences: Alternatives in Literal Meaning

Assuming that legal science, specifically with regard to interpretation, has to provide the tools to reduce the uncertainty of legal solutions arising from the use of natural languages by legal orders, it becomes a central matter to identify, in this limited domain, the spectrum of semantic variation (and its boundaries) that language brings to the definition of a norm expressed by a norm sentence. It is in this framework that the present paper, analyzing norm sentences as a specific kind of speech act, examines the relation of the legal order to natural language rules, the limits of linguistic uncertainty, and alternatives of meaning as distinct possibilities of norms covered by the text (that are, because of this, still within what literal meaning is). Considering interpretation just as the linguistic decoding process, the reverse of the process of creating norm sentences, the paper also argues that subjects not connected with the relation between norm sentences and norms (mainly, normative defeasibility) are analytically distinct and should be removed from the field of language.     

隐性双轨制：刑法中保安处分的教义学阐释

我国现行法律中虽无保安处分的概念,但在刑法中已实质性地存在保安处分,其与刑罚共同构成刑法所规定的法律后果,由此形成“隐性双轨制”的格局。对保安处分规范的识别,首先应从与罪责的关系上、目的与功能的差异上明晰刑罚与保安处分的基本界分,进而从法律特征上区分刑罚规范与保安处分规范,最终将现行刑法中的保安处分措施“挖掘”出来。澄清现行刑法中保安处分措施的性质和法律地位,有利于确保这类措施的正当适用,同时也有利于保障个人的基本权利免受不当干涉。     

功能转向抑或教义坚守:应急状态下刑事司法的实践和规范

突发事件应急治理是一个全局性的工作,需要各部门法在治理目的的统摄下相互协调、综合应对。无论从刑事法律体系功能化转向还是应急治理对国家权力、个人权利的重新塑造来看,刑事司法基于应急治理需求的应变具有当然正当性。然而突发事件带来的情势急转,存在刑事法律滑向工具主义、应急目的的非理性反应和对应急权力制约弱化的潜在风险,这就要求刑事法律在适用过程中严守人权保障底线,在充分考量集体法益共识形成过程和精准判断特殊法益侵害的情形下,谨慎、规范地适用刑事法律规范。     

数据治理法律路径的反思与转进

数据已成为数据经济的重要生产要素和企业之间竞相争夺的战略资源。当前数据法律规范体系正处在理论构建阶段,数据法律规范严重滞后于数据产业的发展,并引发诸多的数据纠纷。理论上,依靠传统财产权路径,尤其是创设绝对权性质的数据财产权成为数据治理的主要选择,但此路径面临着诸多问题,新型数据财产权的构建仍前途未卜。数据治理合同路径更契合当前数据经济的发展,在实现数据流通与商业模式创新上更具灵活性,其本质是数据许可合同的规范问题,应成为数据治理的重要法律路径。我国数据治理合同路径应当构建以数据许可合同为一类典型合同作为数据时代的基础合同,并参照国外相关立法实现此类合同的专门立法。     

论空间视角下的流域治理法律机制

流域治理法律机制关注法律作用于流域治理的系统性、动态化过程。作为法律机制的作用对象,流域是以水为核心要素和纽带形成的特殊空间。这一空间特质对流域治理法律机制具有塑造作用,其具体表现在法律机制的维度、边界、组织结构和具体手段等四个方面。但是,囿于传统一元空间观下对流域的"水系空间"定位,法律机制的上述四个方面分别存在整体性、系统性、协同性、实效性问题。当前,中外流域治理的最新发展经验表明,作为一个"社会--生态系统",流域应当升级为多元空间观下的"国土空间"。有鉴于此,流域治理法律机制亦需相应地对上述四个方面加以完善,以实现流域治理的法治化。     

国家治理现代化视阈下的法律、道德与组织规范关系

国家治理现代化须以系统完备、科学规范、运行有效的规范体系为基础。而法律、道德和"组织规范"共同构成现代社会的规范体系。因而,高度重视"组织规范"并正确处理好它与法律道德的关系,就显得十分重要。"组织规范"具有民间性、自主和自治性,有权制定并实施"组织规范",约束组织本身及其成员的相关行为。这些"组织规范"上承法律下接道德,但又不是照抄照搬,而是依"法无禁止即可为"原则独立存在。在中国继续深化改革和努力实现国家治理现代化的背景下,有必要重新认识三大基础规范的关系,从而有效发挥"组织规范"的作用,构建良好社会秩序。     

Norm Enactment and Performative Contradictions

In this paper we investigate the role of performative contradictions in legal discourse. First of all we identify the argumentative roles of performative contradictions and two possible interpretations of them. With this done, we show that one use of performative contradictions can be fruitfully applied in analysing normative speech acts implementing norm enactment, namely, those speech acts that are designed to produce new legal norms. We conclude the paper by showing that our analysis provides strong support for Robert Alexy's claim‐to‐correctness thesis, according to which speech acts of the norm‐enacting kind raise a claim to correctness.     

The Proliferation of Human Rights in Global Health Governance

Human rights play an integral role in the global governance of health. Recently, both structural and normative aspects of human rights have proliferated across multiple levels and within multiple contexts around the world. Human rights proliferation is likely to have a positive impact on the governance of health because it can expand the avenues through which a human rights framework or human rights norms may be used to address and improve health.     

Earth system governance: a research framework

The Earth System Science Partnership, which unites all major global change research programmes, declared in 2001 an urgent need to develop “strategies for Earth System management”. Yet what such strategies might be, how they could be developed, and how effective, efficient and equitable such strategies would be, remains unspecified. It is apparent that the institutions, organizations and mechanisms by which humans currently govern their relationship with the natural environment and global biochemical systems are not only insufficient—they are also poorly understood. This article presents the science programme of the Earth System Governance Project, a new 10-year global research effort endorsed by the International Human Dimensions Programme on Global Environmental Change (IHDP). It outlines the concept of earth system governance as a challenge for the social sciences, and it elaborates on the interlinked analytical problems and research questions of earth system governance as an object of study. These analytical problems concern the overall architecture of earth system governance, agency beyond the state and of the state, the adaptiveness of governance mechanisms and processes as well as their accountability and legitimacy, and modes of allocation and access in earth system governance. The article also outlines four crosscutting research themes that are crucial for the study of each analytical problem as well as for the integrated understanding of earth system governance: the role of power, knowledge, norms and scale.     

Let's talk about trust,baby! Theorizing trust and mutual recognition in the EU's area of freedom,security and justice

If mutual recognition is to be the ‘cornerstone of judicial co‐operation’ in the area of freedom, security and justice, mutual trust, on the other hand, must take a lead role as the normative glue that grounds and facilitates legal practices of recognition. Despite its topicality and practical relevance, the theoretical underpinnings of trust have been largely left untouched by legal scholarship. This article seeks to fill that void by unpacking trust's conceptual premises to prepare a critique of the legal principle of mutual trust and its underlying ideology as it emerged in the jurisprudence of the CJEU. It presents an enriched conceptualization of recognition trust, inquires into the potential and risks of trust‐based judicial cooperation and sheds light on the interplay of trust, distrust and the law. In drawing policy conclusions from the theoretical discussion, it also points to a new normative dimension of trust asking whether trust could feature as a form of mutual recognition.