论宪法上的财产权——根据人在社会中的自治地位所作的解说

在宪法上 ,财产权是社会中自主、自决、自治的人追求幸福的条件 ,而不是法律上一切人格体瓜分经济价值的形式。它与经济学的产权概念有巨大差异 ;同时 ,也不是复制民法的财产权概念。宪法列举财产权 ,旨在排除公权力的侵犯。公权力侵犯财产权的本质在于限制甚至排斥社会中自我决定和自我实现的独立人格 ,其形式包括扭曲该项权利的主客体结构、恣意予以剥夺和不适当地予以限制 ,其最严重的不利效果是公共财产过度扩张。宪法保护财产权最关键的环节不是公私财产“一体保护” (平等保护 ) ,而是防止公共财产过度扩张。只要公共财产过度扩张 ,即使实行“一体保护” ,人们也不能享有适当的自治地位。 2 0 0 4年 3月通过的宪法修正案加强了对财产权的保护 ,突出了它作为人权的特征。科学实施 2 0 0 4年修正案的规定 ,需要从人在社会中的自治地位出发 ,结合现行宪法的发展历程 ,适当解决条文没有直接回答的若干重大问题     

Abortion in Israel: Community, Rights, and the Context of Compromise

In contrast to American understandings of abortion as a uniquely tragic dilemma, the Israeli abortion issue is a tangential controversy in a larger debate over the relationship between the state's national and democratic identity. The divergent paths of abortion politics in Israel and the United States reflect important differences in underlying religious doctrines, geographical size, feminist ideologies, and the immediacy of other social cleavages. More profoundly, the two abortion stories are the product of distinct understandings of the mutual obligations between citizens and their state and of the relationship between individual and collective rights and duties. While these differences may account for the capacity of Israeli activists on both sides to forge pragmatic compromises, the stability of these policies is uncertain both because of changing Israeli priorities and the import of American conceptions of the abortion dispute.     

Theorising Children's Rights in Youth Justice: The Significance of Autonomy and Foundational Rights

This paper develops a theoretical approach to children's rights in youth justice, located within a wider rights‐based theory of criminal justice which emphasises the centrality of citizens' autonomy. Understanding what is special about children's rights in the youth justice system requires an understanding of how children's autonomy differs from that of adults. One difference is that within the legal system children are not considered to be fully autonomous rights‐holders, because childhood is a time for gathering and developing the assets necessary for full autonomy. These assets should be protected by a category of ‘foundational’ rights. It is argued that an essential component of a rights‐based penal system for children is that it should not irreparably or permanently harm the child's foundational rights. The concept of foundational rights can then underpin and strengthen international children's rights standards, including those relating to the minimum age of criminal responsibility, differential sentencing for children and adults and a rights‐based system of resettlement provision.     

公民权利抑或个人权利——宪法文本中的个人与公民概念分析

基本权利的主体有个人、公民、法人、组织集体之分,基本权利的最主要主体是个人,这是宪法思想史和宪法性文件所昭示的。中国宪法规定公民作为基本权利主体,个人只是义务主体。这样使得基本权利主体范围减少,在理论上与中国宪法规定的人权原理相悖。其原因有理论上的误区,也有翻译的误导。建议把中国宪法文本中的“公民的基本权利和义务”改为“基本权利”或者“人和公民的基本权利”,其具体内容则重新以“个人”基本权利为主进行规范,使得宪法规范中的基本权利条款与人权规范的本质特点相一致。     

论和谐文化在和谐社区建设中的作用

和谐文化是一种先进文化,它具有导向、激励、调控三大社会功能。和谐文化能够为和谐社区的构建提供思想基础和精神动力,为和谐社区的管理提供精神支柱和思想纽带,为和谐社区的健康发展提供价值导向和思想保证。因此,建设中国特色的社区和谐文化,一是要继承和弘扬中国优秀的传统文化;二是要批判地吸收外国文化的有益成分;三是要坚持＂以人为本＂,实现和谐文化的共建共享。     

中国传统人权观念再探——一个比较法文化的视角

人权的概念虽然产生于西方 ,但人权的思想并不是西方的专利。我国传统文化中蕴含着大量的人权观念 ,这些观念与西方的人权观念可谓殊途同归。自由观是人权的理论基础 ,中国传统的自由观更强调个人自由和社会利益的协调 ,这种自由正是现代人权观的应有之义。善恶论是人权的人性基础 ,中西方的人性论在本原上都以性善论为基础 ,但西方的性善论在近代被启蒙学者颠覆 ,促成了法治 ,进而弘扬了人权 ,而中国的性善论始终未被颠覆 ,进而无法形成法治 ,人权观念没有变成人权现实。理性观是人权的文化基础 ,这在西方表现为自然法 ,中国古代也有自然法 ,中国的自然法在抽象层面上表现为“道” ,在现实层面上表现为“乐”。“道”中包含了大量的现代的人权观念 ,“乐”所营造的氛围催生了人权观念     

Principle,Proceduralism, and Precaution in a Community of Rights

Abstract. This paper presents a sketch of the way in which an ideal‐typical community of rights, Gewirthia, responds to the so‐called “internal problem of authority.” Notwithstanding the deep moral consensus in Gewirthia, where citizens are fully committed to the Principle of Generic Consistency (requiring that agents respect one another’s freedom and basic well‐being), Gewirthians make no claim to “know all the answers.” In consequence, public governance in Gewirthia needs a strategy for dealing with the many kinds of disputes—disputes that relate to matters of both principle and practice—that require authoritative settlement. In this context, having outlined the nature of (and justification for) the procedural strategy that Gewirthia adopts in order to resolve such disputes, we discuss the range of regulatory questions that are potentially moot in Gewirthia, and focus on three hard cases in which the State might argue for a precautionary licence—namely, where there is a dispute about indirect and speculative harm to rights‐holders, about harm to arguable rights‐holders, and about the possible corrosion of the conditions that are essential for the sustainability of a moral community.     

The cost of delegated control: vicarious liability, secondary liability and mandatory insurance

Vicarious liability, secondary liability and mandatory insurance are three systems for attaining judgment-proof or disappearing injurers’ precaution through the direct control of a second party (the vicariously liable principal, the secondary liable party, or the insurer). In this way, the legal system delegates control over some injurers to private entities. Such mechanisms generate monitoring costs. In this paper, we consider who bears the cost of such monitoring, and the effect thereof on the equilibrium level of precautions under different liability rules. We use these findings to explain some of the patterns in the coupling of substantive standards of liability and legal regimes of delegated control.     

Rights and Rhetoric: The Politics of Asylum and Human Rights Culture in the United Kingdom

No assessment of the state of human rights today could be complete without some consideration of the situation of asylum seekers and the political trends behind it. Four years after the implementation of the 1998 Act, asylum seekers are perhaps more denigrated in rhetoric and harsh practice than they were even before the first promise that rights would be 'brought home' for all 'people' in the United Kingdom. This piece looks at the undermining of the very concept of asylum, dehumanizing policies such as forced destitution, and attacks on access to legal process for those making asylum claims. It goes on to consider judicial attempts at coping with the arena in which high politics and fundamental rights seem in greatest tension. Finally it considers potential implications for the broader aspiration of building a human rights culture in this country.     

Social Disorganization and Neighborhood Fear: Examining the Intersection of Individual,Community, and County Characteristics

Fear has long been studied as a consequence of crime given the consistent and ubiquitous nature of fear as a reaction and the systematic variations in its consequences. Past research has shown significant variations in fear of crime at both the individual and ecological level. Here we implement a multi-level approach to understanding potential interactions between perceived safety in one’s neighborhood in relation to social disorganization indicators at the neighborhood level and crime rates at the county level. The nationally representative sample data (n = 2,610) used in this analysis combines individual level data collected in 2006 from the Panel Study of Religion and Ethnicity (PS-ARE) with ecological level data at the tract and county level from the 2000 US Census. The findings suggest a three level interaction negating the well known protection hypothesis of marriage and crime; this essentially means that as being married or cohabitating decreases the negative effects of being in a community with a high level of familial disruption (percent of divorced) increases, but that effect is substantively negatively tempered as the violent crime rate of the county rises.     

The Unorganised Worker: The Decline in Collectivism and New Hurdles to Individual Employment Rights

The ‘unorganised’ worker (neither unionised norcovered by a collective agreement) is the norm in Britain, especiallyin the private sector, which employs about 70% of employees.In 2003, union membership was down to 29.3%, and 18.2% in theprivate sector. Collective bargaining covers 72.2% of workersin the public sector, but only 22.1% in the private,¹ leavingstatutory regulation of individual employment rights as theonly protection for the majority of workers. In this context,access to these rights, and ease of enforcement, while neverpreviously straightforward, are becoming increasingly crucial.The individualisation of the employment relationship, whichbegan before New Labour returned to power in 1997, has continuedwith little restoration of collective rights and new legislationenhancing individual rights. The government’s commitmentto neo-liberalism and maintaining a ‘flexible’ labourforce has ensured that these further rights are circumscribedby new legislation, which places them further out of reach.This paper discusses this process in the context of the difficultiesworkers already face in obtaining support and guidance, thelack of affordable professional legal advice and representationand the impediments to providing an adequate service by theunder-funded voluntary sector.     

适应与自主之间的德国基本权利教义学——德国国家信息行为的宪法教义学建构

德国联邦宪法法院基于国家信息行为的三方性特征在合宪性审查中采用了偏离自由权三阶审查模式的回应方式:增加了保障内涵(Gewhrleistungsgehalt)的审查标准,同时把侵害(Eingriff)概念扩展为损害(Beeintrchtigung)并以宪法未明文规定的国家领导任务(Aufgabe der Staatslei-tung)建构国家信息行为的正当性基础。在观察基本权利教义学结构与面貌变动的基础上明确了:基本权利教义学以提供理性化之法律适用并达成个案之基本权利保障为目的,面对多变的国家行为形式具有开展的弹性与适应变迁的可能性。     

Idle Rights: Employees' Rights Consciousness and the Construction of Sexual Harassment Policies

This article analyzes women's legal consciousness in responding to unwanted sexual attention in the workplace. By focusing on a particular social problem, this study is situated in the particular legal domain of sexual harassment laws and in a specific organizational context. Taking the perspective of the intended beneficiaries of sexual harassment policies and procedures—women with complaints about sexual conduct in the workplace—I show that the implementation of grievance procedures creates powerful obstacles to women's efforts to assert those rights. Moreover, the practices implementing the policies can alter the very definition of sexual harassment in that setting. Thus, in enacting grievance procedures, women and supervisors construct a legality in particular workplaces that offers only limited protection for women's rights.     

Structuring of Identities in Relation to Material Possessions in Poland of the 1990s: Issues of Policy, Culture, and Individual Life-Worlds

This paper explores the re-defining and re-creating of individual, group and social identities in relation to material possessions in the context of private property becoming one of the fundamental principles of organization of the socio-cultural reality of Poland in the 1990s. These processes can be seen as a crucial part of the cultural and civilizational transformation of Polish society towards a more individualistic and materially oriented one. Part of this development is the mostly uncritical adoption of the materialistic paradigm 'to have is to be', which threatens to destroy the capital of humanist values traditionally existing in Polish society, and which renders problematic the facilitation of socio-cultural conditions of a 'secure moral order' or a 'moral economy'.     

从个体到社会：国外损害赔偿法的发展

近代损害赔偿法存在一个发展的过程,对于这一过程进行梳理,可以明晰损害赔偿法发展的脉络,为我国损害赔偿法提供借镜。近代损害赔偿法最初以过错责任为基点,随着社会发展渐次导入无过错责任,又至社会保障与损害赔偿相融合,其中损害赔偿范围也发生了扩张。