‘We the People of the United States…’: <Emphasis Type="Italic">The Matrix</Emphasis> and the Realisation of Constitutional Sovereignty

In its enunciation of “We the people,” the Constitution of the United States of America becomes a constitution of the flesh as it simultaneously invokes a constitution, a nation and a people. Correspondingly, its amendments as a list of rights pertaining to sex and race discrimination, and freedoms of bodily movement and action, assert the Constitution’s authority through the evocation of “natural” human bodies. In this article, I explore the way in which a sovereignty of the United States’ Constitution is realised in the particularlised bodies of its citizens. The fundamental and foundational laws of the United States, and the narratives and myths used to interpret them, are in part rendered legitimate by the Constitution’s embodiment, which extends from its physical manifestation in written documents into the flesh of its citizens. In order to make this argument, I turn to the film The Matrix (1999), the success of which relies on an investment in bodies and the United States’ Constitution as matter through its interwoven narrative themes of human slavery and emancipation, reality and computer-generated simulation. At the same time, The Matrix extends its ideological play into the bodies of its audience, who experience the film’s thrillingly sensorial fantasies of constitutional rights while enjoying its affective special effects. Thus, the sovereign authority of United States constitutional law is experienced as “natural” through the phenomenological experience of cinema.     

Equality and Constitutional Indeterminacy An Interpretative Perspective on the European Economic Constitution

It is claimed that European supranationalism represents an unprecedented mode of political association whose point is to maintain what is good about nationality and the nation state by stripping the latter of its adverse effects. In this article, this claim is submitted to a test by examining how different ways of conceiving of anti‐discrimination in the context of intra‐Community trading law give rise to two different conceptions of the European economic constitution. While the first one is married to the ideal of behavioural anti‐discrimination–that is, of affording protection against discriminatory acts by Member States–whose application would seemingly leave the nation state in its place, the other one takes a system of nation states as something that in and of itself engenders systematically discriminatory effects on international trade. According to the latter, effective anti‐discrimination presupposes overcoming such a system altogether. Both conceptions of the economic constitution are manifest in Community law, and at first glance it appears as if adherence to the first one would be consonant with supranationality as a special mode of political association. However, owing to internal predicaments arising from the application of the equality principle (understood as a principle protecting against discrimination), the difference between both conceptions cannot be upheld in practice. Since the first conception is constantly undermined by the second in the course of its application, it remains uncertain, at least in this context, whether or not the European nation state is left in place by the European Economic Constitution.     

Discrimination, Equality and Social Inclusion

Although laws against discrimination have conventionally been justified and articulated according to various conceptions of equality, tensions between different notions of equality undermine the coherence of these explanations. The aim of social inclusion is proposed as part of an alternative justification for discrimination laws. As well as exploring the meaning and implications of the policy of social inclusion for discrimination laws, the extent to which the law already embodies this idea is assessed with particular reference to the scope of anti-discrimination laws, proof of discrimination, justification defences, and positive discrimination. It is concluded that the goal of social inclusion has the potential to provide a vital ingredient in a more coherent, though not uncritical, account of the aims of anti-discrimination legislation.     

差异和平等——兼论法律上的平等

＂平等＂是现代文明中一个重要的价值观念,但对它的理解却颇有争议,包括法律上的平等。人与人的差异显示了平等观念的核心——人权,人权的基本要求是人格的独立和与此适应的最基本的生存条件。因此不能把平等理解为无差异或把所有的差异理解为不平等。因为人与人的差异并不一定是不合理的,人与人的差异的产生有自然的原因,有社会的原因,只有后者才可能是不合理的,才是平等观念所反对的,其中的要义就是使所有人享有＂人权＂,即与现代文明相适应的＂人＂的尊严和与之适应的物质待遇。平等的要求仅限于此,超出此义,必陷入荒谬。现代法律应以平等为原则,从制度上限制因社会原因所造成的人与人的不平等,并平等地适用法律,坚持法律面前人人平等的法治原则。法律可以从立法和司法多种途径追求平等和保护人权,但其只能从制度层面为平等的实现创造条件,法律不可能消除一切不平等,法律更不会消灭一切差别。相反,法律在对平等的追求中还要保护合理的差别,故此,法律的公平原则中包含着差别原则。     

The Many Meanings of Equality and Positive Action in Favour of Women under European Community Law - A Conceptual Analysis

Abstract: The principle of equality of men and women as understood by Community institutions covers four distinguishable aspects. The first is equal treatment, defined in Community texts as the absence of legal gender discrimination. This concept focuses on individual rights and does not take into account the social context in which rules function. Second, the Community seeks to realise equal opportunities, understood as factual equality of chances. Third, Community law displays a concern for factually equal outcomes. The institutions accept legally different treatment that seeks to equalise unequal living conditions and inversely admit that facially neutral rules can have discriminatory effects. Finally, various documents conceive of gender equality as equal representation of the sexes in professional and public life. In the Kalanke decision of October 1995, the Court for the first time dealt with quotas in favour of women. It held that a national provision granting female candidates an automatic preference is incompatible with the right to equal treatment. The Court failed to acknowledge the tensions that arise from the coexistence of paradigms. An awareness of the multiplicity of concepts of equality, exhibited in Community law and rooted in the common constitutional heritage of the Member States, is however a prerequisite for a more sophisticated discussion of the issue of positive action.     

八二宪法的人权逻辑——以三十年社会变迁为背景

以现实的社会条件为基础,1982年宪法形成了以发展性、时代性、中国性为核心的人权逻辑主线。随着三十年来我国社会的发展与变迁,1982年宪法的人权体系也在不断地扩充与演进,由对我国经济、社会发展最直接需要与成果的经济权利的凸显,到具有普适性人权价值的确认,再到经济、社会、文化权利即广义社会权体系的完善。在当下,公平享受发展成果,权利的平等保障是1982年宪法人权逻辑的最核心命题与最终极价值。     

失地农民社会权保障的宪法分析

社会权作为失地农民的一项基本权利,由于制度性根源、法律根源和公共政策根源造成了失地农民社会权的贫困,并且未得到宪法等法律的有效保护。从构建和谐社会角度看,加强失地农民社会权的宪法保障,以人为本是失地农民社会权宪法保障的哲学伦理学基础,阶层平等是失地农民社会权宪法保障的法理基础,人格尊严与个人自治是失地农民社会权宪法保障的人权法价值。失地农民社会权的宪法保障离不开宪法本身的完善和宪政制度构建的支持,实现失地农民社会权宪法保障是国家应尽的义务。     

论未成年人受教育权的平等保障——以“绿领巾”事件为切入

平等原则与自由原则一样构成人权的重要原则。鉴于平等权内容的特殊性,20世纪以来禁止歧视已成为平等原则的实质性建构过程中的最基本因素。依据《取缔教育歧视公约》关于歧视的定义,发生于西安的“绿领巾”事件已构成教育歧视。     

The Hindu marriage system in Bangladesh: addressing discrimination

As a social and legal institution, marriage is recognized in every society and by every faith. The author examines the institution of marriage amongst the Hindu community of Bangladesh. After the independence of Bangladesh, no legislative measure has been taken to address the Hindu marriage system. From a gender as well as a religious perspective, the whole spectrum of Hindu marriage has often been criticised as being discriminatory, particularly towards women. Despite the fact that the Constitution of Bangladesh has clearly abolished all forms of gender and religious discrimination, these provisions are not reflected in reality. As a signatory of various international conventions, Bangladesh is also under an international obligation to materialise the notion of equality in its municipal system. This article analyses the various lacunae of the prevalent Hindu marriage system in Bangladesh and their underlying reasons. It also makes recommendations in order to achieve Bangladesh’s constitutional and international obligations toward gender equality.     

论人权公约中的禁止歧视

禁止歧视是联合国人权公约的重要内容,反对歧视的斗争也是联合国人权活动的中心,人权法与人权理论必须认真对待歧视的问题。歧视的核心规定性是“不合理的和主观的区分”,在人权公约中,禁止歧视有双重属性,既是附属性的,又是独立的。禁止歧视的理论基础是平等,核心是获得法律平等保护的权利。平等权的法律保障有积极和消极两个方面,国家负有不歧视的义务并有义务采取积极行动使人们免于歧视。     

Legal Intermediaries: How Insurance Companies Construct the Meaning of Compliance with Antidiscrimination Laws

Existing empirical research suggests that human resource officials, managers, and in‐house counsel influence the meaning of antidiscrimination law by communicating an altered ideology of what civil rights laws mean that is colored with managerial values. This article explores how insurance companies play a critical and, as yet, unrecognized role in mediating the meaning of antidiscrimination law through Employment Practice Liability Insurance (EPLI). My analysis draws from, links, and contributes to two literatures that examine organizational behavior in different ways: new institutional organizational sociology studies of how organizations respond to legal regulation and sociolegal insurance scholars' research on how institutions govern through risk. Through participant observation at EPLI conferences, interviews, and content analysis of insurance loss prevention manuals, my study bridges these two literatures and highlights how the insurance field uses a risk‐based logic to construct the threat of employment law and influence the form of compliance from employers. Faced with uncertain legal risk concerning potential discrimination violations, insurance institutions elevate the risk and threat in the legal environment and offer EPLI and a series of risk‐management services that build discretion into legal rules and mediate the nature of civil rights compliance. My data suggest that insurance risk‐management services may sometimes be compatible with civil rights goals of improving equality, due process, and fair governance in workplace settings, but at other times may simply make discrimination claims against employers more defensible.     

Caste Discrimination: A Twenty‐First Century Challenge for UK Discrimination Law?1

Discrimination based on caste affects at least 270 million people worldwide, mostly in South Asia. Caste as a system of social organisation has been exported from its regions of origin to diaspora communities such as the UK, yet despite the prohibition of caste‐based discrimination in international human rights law caste is not recognised as a ground of discrimination in English law. The overhaul of its equality framework and the proposed new single equality act present the UK with an opportunity to align national legislation with international law obligations. The Government's decision not to include protection against caste discrimination in the new legislation leaves race and religion as the only possible legal ‘homes’ for caste. This article considers the argument for legal recognition of caste discrimination in the UK, the capacity of race and religion to subsume caste as a ground of discrimination, and the role and limitations of law in addressing ‘new’ forms of discrimination such as casteism.     

The Difference Law Makes: Domestic Atrocity Laws and Human Rights Prosecutions

This article offers the first systematic analysis of the effects of domestic atrocity laws on human rights prosecutions. Scholars have identified various political and sociological factors to explain the striking rise in human rights prosecutions over the past 30 years, yet the role of domestic criminal law in enabling such prosecutions has largely been unexamined. That is surprising given that international legal prohibitions against human rights atrocities are designed to be enforced by domestic courts applying domestic criminal law. We argue that domestic criminal laws against genocide and crimes against humanity facilitate human rights prosecutions in post‐authoritarian states by helping to overcome formal legal roadblocks to prosecution, such as retroactivity, amnesties, immunities, and statutes of limitations. Using original data on domestic atrocity laws and human rights prosecutions in new democracies, we find that atrocity laws increase the speed with which new democracies pursue prosecutions, as well as the overall numbers of trials they initiate and complete.     

英国反就业歧视制度及实践研究

英国习惯法并不禁止歧视行为,但随着英国加入各种国际组织及国内平权运动的高涨,在20世纪70年代后,英国对于禁止性别、残疾、年龄等制定了大量的法律。当前英国反就业歧视的法律渊源主要包括:欧盟立法和专门性法律。这些法律中就有关就业歧视的违法行为进行了详尽和周密的规定,包括直接歧视、间接歧视、骚扰和受害等四种歧视形态,禁止在雇佣关系中各个阶段的任何歧视。为了有效地防止就业歧视,英国依据《平等法》成立了人权与平等机会委员会。平等机会委员会在应对英国社会中相对突出的就业歧视问题扮演了重要角色。     

住房权保障如何可能研究纲要

在公法意义上,早期的住宅自由是基本人权的住房权的雏形。历史经验表明,时代的发展和人权理念的更新不断地将新的内涵注入住房权权利体系。近年来,随着国际国内社会对住房权的普遍重视,在国内层面上如何实现对住房权的法律保障问题渐进凸显。在立法层面,宪法和住宅法应该成为基础与核心,而在司法实践中也应该尝试确认住房权的可诉性,实现对住房权的司法救济。     

Discursive Illusions in Legislative Discourse: A Socio-Pragmatic Study

This paper takes the position that interpretations of legal discourse are invariably taken in the context of socio-pragmatic realities to which a particular instance of discourse applies. What makes this process even more complicated is the fact that social realities themselves are often negotiated within the mould of one’s subjective conceptualisations of reality. Institutions and organisations, including people in power, often represent socio-political realities from an ideologically fuelled perspective, engendering many ‘illusory’ categories often a result of contested versions of reality. To substantiate this view, we discuss interpretations of a number of interesting contemporary and controversial laws, including America’s Patriot Act and Hong Kong’s proposed Article 23 of the Basic Law. Both laws can be seen as illustrative of the definitional conflict that abstract concepts such as democracy and human rights are subjected to in their own specific socio-political contexts. While America crowns itself with democracy and Hong Kong struggles to achieve it in effective synthesis with its unique political arrangement, the laws produced by both contrasting political systems are unexpectedly similar, aiming for the moderation of basic rights. The actions of both governments set against their beliefs and discourses, and furthermore set against one another and other media voices, particularly those of non-governmental organisations, political activists, and other socio-political groups, demonstrate contestation of realities, giving rise to ‘discursive illusions’, which seem to be interpreted not so much on the basis of their linguistic construction but more on the basis of socio-pragmatic factors, such as trust, belief, transparency, control and power.     

谈现代科技的发展与宪法(学)的关系

现代科技发展十分迅猛,对宪法和宪法学都带来了深刻的影响。文章两位作者就现代科技发展对宪法(学)发展的贡献,现代科技发展对宪法(学)的冲击和挑战,特别是器官移植与生命权、克隆人与宪法价值、基因检测与公民的平等权、信息传播与公民的隐私权、因特网技术与宪政体制和基本权利等问题展开了讨论。宪法(学)也不是消极地应对科技的发展,而是积极地回应,一方面给现代科技的发展提供支持,另一方面也为限制现代科技发展的负面效应提出有效的对策。现代科技的发展应该回归到宪法的价值体制之内。     

制度性歧视与平等权利保障机构的功能——以农民权利保障为视角

制度性歧视是指由国家的正式规则所形成或被国家的正式规则所接受和保护的歧视。城市化进程中针对农民的歧视性制度安排,主要表现在经济和社会领域。具体可分为如下几类:户籍制度;农地征用制度;社会保障制度;教育制度;就业制度等。上述歧视性的制度安排严重侵犯了农民财产权、劳动权、获得物质帮助权、教育权等基本的宪法权利。通过立法的方式建立专门的以反歧视为目的的平等权利保障机构或职能更宽泛的人权保障机构,既是国际人权法所倡导的,在世界上许多国家以及我国的香港地区已有成功的实践经验。平等权利保障机构就其功能而言,适合于以大多数农民为代表的弱势群体的生存状态和权利诉求。     

社会福利保障的宪法路径选择

世界各国宪法保障社会福利有两种模式,一种是在宪法中列举各种社会权利的"社会权"保障模式,另一种是仅在宪法中明确建设社会国家的原则或者类似条款的"社会国"保障模式。从我国《宪法》的现有规定及其变迁、宪法的解释与学界的解读看,我国属于"社会权"模式。"社会权"保障模式的缺陷是随着民众追求平等意识的成长、市场机制的扩展和公民权利意识的增强,社会福利可能借助宪法无序、无限地扩张。通过淡化社会福利的权利性质、转变社会权的合宪性审查的方向、扩展反射利益推进社会福利以及贯彻宪法设立的可承受性、适度性原则,可以推进我国社会福利宪法保障模式由"社会权"模式向"社会国"模式转换。     

少数人权利及其保护的平等性

少数人作为弱势群体的一部份 ,其权利日益受到各国的关注与重视。然而 ,在对少数人具有重要意义的经济、社会、文化权利上 ,各国却有不同的看法 ,本文在比较了各国在权利问题上的文化传统和近现代的各种平等理论之后 ,分析指出在以经济、社会、文化权利为核心的相当一部份权利上 ,各国政府应当在避免形成“反向歧视”的前提下 ,采取积极措施 ,让少数人有更多机会参与社会竞争 ,实现社会整体的平等和更公正意义上的平等