宪法视阈下的劳动权及其法律保障机制研究

宪法视阈下的劳动权是一项综合性权利,是由择业自由权与就业援助权为核心要素构成的一系列权利束。劳动权兼具自由权和社会权双重属性,它应受到宪法合理的限制。劳动权与公权力、私权利存在冲突,应通过比例原则与平等原则、倾斜原则与协调原则调适。宪法视阈下的劳动权具有可诉性,建立宪法主导下的法律保障体系,同时借鉴域外立法构建包括公益诉讼制度在内的司法救济和宪法救济模式,以确保劳动权的实现。     

平台经济下网约工集体劳动权行使机制革新探讨

平台经济对网约工集体劳动权的行使提出了挑战。集体劳动权行使机制形成于大工业时代,工会会员资格与劳动关系结合紧密。平台经济颠覆了企业传统用工方式,网约工面临"劳动者"身份认定困境,既难以加入企业工会,又难以通过基层行业工会与跨区域经营的平台企业进行集体协商。研究认为,面对平台经济引发的挑战,有必要破除劳动关系"迷思",将网约工纳入"生存权"进路下的"职工"范畴,为其组建或批准跨区域的高层级行业工会,探索与平台企业开展集体协商的方式,以工会治理现代化回应网约工集体劳动权保护需求。     

论劳动力权是职工参与权的权利来源

职工参与权是劳动力权人享有的通过参与公司民主决策、民主管理和民主监督来促进公司发展,保障其权益的权利.从劳动力权的人权和财产(“物”)权属性来看,职工参与权的权利来源是职工(劳动者)所拥有的劳动力权而不是来源于政治与经济制度和劳动权.     

维权知识问答（之一）

1、什么是公民的劳动权?答:公民的劳动权是指公民在法律规定的条件下,能够享有平等的就业机会权和选择职业的自主权。我国《宪法》规定中华人民共和国公民有劳动的权利和义务。国家通过各种途径,创造劳动就业条件,加强劳动保护,改善劳动条件,并在发展生产的基础上,提高劳动报酬和福利待遇。劳动是一切有劳动能力的公民的光荣职责。     

智慧城市建设之环卫工人劳动权益保障

城市环卫工人是一个城市良好运行的基本保障。但城市环卫工人的生存状况较差。职业地位不高,收入水平很低,从业环境安全度低,劳动合同签订率低,工伤权益无法获得保障等问题严重侵害了环卫工人这一群体的合法权益。首先,应通过提高职业工资和社会宣传提高环卫工人的职业地位,改变他们长期受歧视的状况;其次,要落实劳动合同签订问题,保障他们的基本劳动权益;第三,则需要对职业病目录和我国工伤法律制度进行调整,将超龄人员纳入劳动合同关系加以处理,增加职业病目录中的职业病种类,保护环卫工人的身体健康;第四,在法律上确立作业中的环卫工人在道路上享有受避让权;第五,推进垃圾强制分类制度,结合科技创新,提高工作效率,整体降低环卫工人的工作强度和工作时长,改善环卫工人的工作环境。     

网约车司机在集体劳动法的身份定位

网络约车平台作为共享经济的代表性运作模式,吸收了大量的灵活就业人员。根据我国现行法律,网约车司机与平台公司并非劳动关系,网约车司机既非个别劳动法上的劳动者,亦非集体劳动法上的劳动者。结合网约车司机的实际生存状态以及国外的理论探索,未来我国可以在不突破劳动关系认定标准的基础上,将网约车司机纳入集体劳动法的保障范畴。即网约车司机虽非个别劳动法之劳动者,但可以为集体劳动法之劳动者。     

网约车司机在集体劳动法的身体定位

网络约车平台作为共享经济的代表性运作模式，吸收了大量的灵活就业人员。根据我国现行法律，网 约车司机与平台公司并非劳动关系，网约车司机既非个别劳动法上的劳动者，亦非集体劳动法上的劳动者。结合网约车 司机的实际生存状态以及国外的理论探索，未来我国可以在不突破劳动关系认定标准的基础上，将网约车司机纳入集体 劳动法的保障范畴。即网约车司机虽非个别劳动法之劳动者，但可以为集体劳动法之劳动者。     

高校女教师劳动权的法律保障研究

我国现在已经建立了以宪法、劳动法和妇女权益保障法为核心的比较完整的对妇女劳动权进行保护法律法规体系,但对高校女教师这一社会群体来说,还是存在着女教师与男教师不同龄退休、职业性别隔离、男女劳动待遇不平等等侵害劳动权的行为。产生这些问题,既有意识上的原因,也有立法不完善、执法不力等原因。可以从加大男女劳动权利平等内容和意识的宣传和教育、完善相关的立法,以及加强执法等方面来保障高校女教师的劳动权。     

劳动者发展型利益保护论析

劳动者的发展型利益是相对于生存型利益而言的,涵盖了更高工资、更好劳动保护、更多培训机会、 合理工作时间、体面劳动等方面。本研究在对发展型利益及相关概念进行辨析的基础上,分析劳动权中的生存 意涵和发展意涵,提出构建劳动者发展型利益保护的立法原则设想。研究认为：发展型利益是劳动者实现自身 权益和全面发展的正当要求;应充分发挥劳动法对劳动权的保障作用,区分生存本位的劳动权和发展本位的劳 动权,积极实现劳动者的发展型利益。研究建议,应从四个方面重构劳动立法的原则：从资本优位到劳动优位, 从应有权利到法定权利,从割裂权利到整体权利,从促进就业到促进发展,从而更好地体现社会主义劳动法的 立法本意。     

"新农村"背景下农民工就业权之法理分析

农民工是伴随着中国改革开放而产生的新兴社会群体,在劳动力市场中处于弱势地位,其就业权益的保障和实现不同程度地受到了旧体制的制约,有的甚至还存在法律的盲区。深入探讨农民工就业权的法理依据,透析我国农民工就业权的保护现状,进而寻求促进和保障实现农民工就业权的对策,对实现建设社会主义新农村的目标,保障整个社会和谐有序发展具有重要意义。     

Women,Science and Culture: Science in the Nineteenth-century Periodical

The Victorian periodical press offers unique insights into many diverse areas of nineteenth-century experience, and the complex relations between gender, science and culture in particular, yet it has been consistently marginalized as a primary resource in academic study. The Science in the Nineteenth-century Periodical (SciPer) project at the universities of Sheffield and Leeds is creating a new point of access to a wide range of non-specialist periodicals across the century by means of a fully searchable electronic index. By detailing the entire contents of each journal, and not just those articles that have a clear scientific relevance, it becomes clear that science formed a fundamental and integral part of nineteenth-century culture. The electronic index, moreover, will include hypertext cross-reference links that will allow the user to identify a dialogic pattern of encounters between ostensibly diverse articles, rather than only to browse in a simple chronological mode. By adopting this innovative approach, the SciPer database will reveal the manifold intertextual relations between the fictional works of women writers like Elizabeth Gaskell and the scientific articles that often appeared in the pages of the same magazines, and will show that writers of both sexes and across several different genres actively engaged in vibrant interdisciplinary debates concerning scientific issues in a forum provided by the periodical. Although the SciPer database itself is not specifically focused on issues of gender, the index will include several periodicals aimed explicitly at a female readership and, by providing access to titles still rarely utilized in modern scholarship, it will offer further insights into the important contemporary debates about women and science, as well as the more subtle ways, in which gendered imagery was employed within scientific discourse. This article details some critical findings from Punch , The English Womans Domestic Magazine , Cornhill Magazine and the Review of Reviews .     

Carnal teachings: raunch aesthetics as queer feminist pedagogies in Yo! Majesty's hip hop practice

This essay puts forward a notion of “raunch aesthetics,” theorizing raunch as an aesthetic, performative, and vernacular practice: an explicit mode of sexual expression that transgresses norms of privacy and respectability. Raunch aesthetics describe creative practices that often blend humor and sexual explicitness to launch cultural critiques, generate pleasure for minority audiences, and affirm queer lives. The author activates her formulation of raunch in analyzing Yo! Majesty, a hip hop group comprised of black female emcees who openly describe their sexual desire for women, and explores how the queer youth of color she works with have responded to their music. Working beyond the unexamined moralisms that give critiques of raunch culture their legitimacy, the author argues that Yo! Majesty's raunch aesthetics transmit queer and feminist teachings. While celebrating carnal pleasures, these artists critique heterosexism, subvert narratives about the incompatibility of belief in Christ and queer sexualities, and trouble notions concerning the emancipation of coming out of the closet and declaring a stable homosexual identity. In demonstrating how raunch aesthetics generate consciousness raising, the author discusses how her youth participants critically read and consume hip hop while negotiating unwieldy meanings of sexuality and gender presentation.     

Feminism, Aestheticism and the Limits of Law

This article seeks to identify and address the normative void that resides at the heart of postmodernist-feminist theory, and to propose a philosophical framework – beyond postmodernism, but incorporating its central insights – for thinking through the normative questions with which feminists are inevitably confronted in their engagements with positive law. Two varieties of postmodernist-feminism are identified and critically analysed: the ‘corporeal feminism’ of Elizabeth Grosz and Judith Butler, which seeks to ground feminist critical practice in the irruptive capacities of the material body considered as an arte fact of social construction; and the deconstructionist feminism of Drucilla Cornell, for whom ‘the feminine’ is an indeterminate but disruptive force beyond its construction in law and in other social sites. The first component of the argument elaborated here is that each of these approaches ultimately reduces to a form of aestheticism which is incapable of generating a worthwhile and workable feminist approach to the restructuring of politics and law. The second component of the argument involves a return to aesthetics, in particular to the philosophical aesthetics of Kant’s Critique of Judgement. Kant’s aesthetic philosophy, it will be suggested, yields a framework of concepts which, duly re-manipulated, could speak to the very concerns that have inspired postmodernist-feminism: how to attend to (bodily) particularity while avoiding the dangers associated with ‘essentialism’; and how to theorise the propensity of the unrepresentable power of the feminine to exceed both embodied human capacities and the confining rein of socially privileged rationalities. Crucially, however it also responds to a set of preoccupations – those of the feminist lawyer – that cannot be accommodated by postmodernism: how to translate embodied experience into (legal) norms; generalise from the particular; seek consensus; and codify an endless potentiality in the form of law. This revised version was published online in July 2006 with corrections to the Cover Date.     

The Unexpected: Bionic Woman at the Millennium

Wilfred Bion's A Memoir of the Future provides a point of departure for feminist thinking about the millennium. Bion problematizes hopes for the future and associates thought with catastrophic change. Women play an unexpected role in Bion's experimental autobiography, posing provocative questions and unsettling the status quo . Since Bion has little to say about women in his clinical writings, A Memoir sheds light on his thinking and on the post-Kleinian culture of the 1970s. Book I of A Memoir depicts a class- and sex-nightmare played out between men and women, and women and women, in an age of anxiety whose setting appears to be the fascist 'pacification' of Middle England during an unspecified period. In this hallucinatory drama, all encounters are reduced to a brutal fiction of dominance and submission. The violence of the action suggests the primitive mental world of psychosis. Book II of A Memoir satirizes 'the brilliance of masculine thought' through the voices and criticisms of women. But this is the purgatorial movement of Bion's autobiography, inhabited by 'idées mères' (untransformed beta-elements) and haunted by the ghosts of Bion's traumatic war-time experience. A monstrous plot is hatched to kill primitive, fascistic Man, who retaliates and takes the female spoils. Is this the prelude to catastrophic change? Book III stages a country-house debate between different characters who represent aspects of Bion's personality, recapitulating the concerns of his later writing. The debate includes a meditation on childbirth as compared to war trauma, but Bion takes his distance from feminine intuition or common sense. Women fight on both sides of the barriers in the Bionic revolution - becoming, however, figures for the 'unexpected' and precursors of emotional upheaval. The gendering of millennial thought in Bion's Memoir provides an opportunity to scrutinize our own unthought fantasies of change.     

The Between

Thinking with this special issue's group of feminist thinkers – some artists and others scholars – this introduction makes a strong case for co-authorship and a more collaborative humanities, while also insisting that the couple form – that stalwart object of queer and feminist theory – is neither a known quantity nor an exhausted entity, but rather, a field ripe for analysis. Situated squarely within performance studies, this introduction pivots away from questions of ontology and toward method and performativity, in order to ask: what modes of intellectual practice, erotic exchange, political work, and aesthetic experimentation happen uniquely within couple forms, in their most capacious and non-self-same iterations? What queer and feminist work can they do? What, in other words, is possible in the infinity, if indeed it is an infinity, between one and two?     

Other forms of conviviality: The best and least of which is our daily care and the host of which is our collaborative work

In this collaboratively written essay, artists Park McArthur and Constantina Zavitsanos take a queer materialist feminist approach to the entanglement of dependency and reproductive labor, disability, intimacy, and the impossibility of exchanging incommensurables. The text merges the authors' experiences receiving and providing one another care with their artistic practices, and includes instructive performance scores for past, rather than future, events.     

Men in Skirts

There are signs that the wearing of skirts by men appears to be on the increase in the West. Connor's essay provides a series of historical reflections on the signification and cultural phenomenology of male and female apparel. The first appearance of bifurcated dress in the late mediaeval period is considered, along with the struggle between men and women for command of lateral space during the seventeenth century in Europe, as attested to by commentators like John Bulwer and John Evelyn. Explications are offered of the thematics of the fringe and the pocket, as they are dramatized in trousers and skirts, as well as of the logic of lightness and of the pendant. Trousers, Connors concludes, have never lost their fanciful associations with utility, practicality and rationality; they are the signs of occupation, of being taken up in what you do, rather than consumed in what you are. The political victory of the trousered over the untrousered races (Romans, Scots, Indians etc.) is confirmed by its inversion in male masochist fantasies of 'petticoat government', from the late nineteenth century onwards.     

Beyond the scarcity scare: reframing the discourse of hunger with an eco-mind

Solutions to world hunger continue to be impeded by a frame – a set of assumptions – that keeps much of humanity focusing narrowly on quantitative growth. The result is greater food production and greater hunger. Yet, across the world another way of seeing, one grounded in the relational insights of ecology, is transforming food systems in ways that both enhance flora and fauna and strengthen human relationships, enabling farmers to gain a greater voice in food production and fairer access to the food produced.     

Here be monsters: a choreomaniac's companion to the danse macabre

Consider this a vade mecum: an invitation to “walk with me” through more or less uncanny terrains of worlds in the making in search, of(f) course, of monsters. The search will be delving into the areas of “creepypasta:” pieces of cursed prose and pictures that circulate online, waiting to contaminate and possess the next reader. Using a theoretical framework of posthuman and feminist theory, not least the work done by Jacques Derrida and Donna Haraway, this vade mecum asks what it might mean to engage ethically with that which is not supposed to exist, but which haunts us nonetheless. In other words: what does it mean to move, live and engage with spectres in digital times?     

Close Encounters: Solidarity,Servitude and Postcolonial Feminist Affects and Affiliations

Abstract

This essay offers close readings of three texts that in different ways foreground the problems, possibilities and struggle involved in forging affective connections across difference between women: Kate Clanchy, What is She Doing Here? 2008, Jamaica Kincaid, Lucy, 1991a and Marlene Van Niekerk, ‘Labour’, 2004. The author argues that the incomplete and partial nature of affective moments represented in these texts signals possibilities for a cautiously redefined idea of affective feminist solidarity as it is mobilized in the intimacy of domestic spaces.