Truth as Justice: Investigatory Commissions in Latin America

In recent years, Latin American countries have sought to come to terms with prior periods of widespread human rights violations, relying increasingly on investigatory commissions. Investigatory efforts have been undertaken by democratically elected governments that replaced military dictatorships, by UN-sponsored commissions as part of a UN-mediated peace process, and by national human rights commissioners. This article examines truth commissions in Chile and El Salvador, an investigatory effort in Honduras, and a proposed commission in Guatemala. It compares the achievements and limitations of these commissions within the political constraints and institutional reality of each country, focusing on four major goals: the effort to create an authoritative account of the past; vindication of victims; recommendations for legislative, structural, or other changes to avoid repetition of past abuses; and establishing accountability or the identity of perpetrators.     

Between Truth,Legitimacy, and Legality in the Post-truth Era

International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique - The post-truth regime is a regime in which certain central categories of modernity seem to be...     

司法的真相——在法律解释的合法性与妥当性之间

对规范和事实的不同安置,以及由此折射出的对合法性与正义性的不同态度,构成了西方法学史的全部。但至少到目前为止,纠缠于规范与事实、合法与正义之间的争论似乎并未取得令人满意的成果。而从现代西方哲学的商谈理论中我们发现,只有放弃学术立场上的任何一种“独断”,实现规范与事实、法律共同体与相应“听众”之间的合意,并对合法性与正义性进行适合法学语境的重新解读,才能最终缓解甚至消除合法性与正义性(妥当性)之间的冲突。     

名分之礼与王权的合法性认证

中国古代的礼从其外在形态来看可以说是一种按名份确定相互关系的仪式,它同时也蕴含着深刻的权力意义.本文从明代的"大礼仪"之争切入论题,以合法性理论和礼的合法性价值为基点,探讨名分之礼对王权的合法性构建与认证的功能问题,具体分析了名分之礼的核心-"三纲"在王权合法性认证中的地位与作用,指出名分之礼在认证最高权力合法性的同时,也对最高统治权力自身运作的合理性提出要求,君主为了寻求自身的合法性,必须表现出对"名分"规则的服从.     

Criminalization,Legitimacy, and Welfare

A standard view about criminal law distinguishes between two kinds of offenses, “mala in se” and “mala prohibita.” This view also corresponds to a distinction between two bases for criminalization: certain acts should be criminalized because they are moral wrongs; other acts may be criminalized for the sake of promoting overall welfare. This paper aims to show two things: first, that allowing for criminalization for the sake of promoting welfare renders the category of wrongfulness crimes largely redundant. Second, and more importantly, accepting welfare as a legitimate ground for criminalization implies a certain view about legitimate state action, which makes criminalization for wrongfulness more difficult to justify. If I am right, the view that keeps the two categories of criminalization as largely separate is untenable. I conclude with some remarks about the advantages of welfare (and not wrongfulness) as the basis for criminalization.     

Entrapment,Culpability, and Legitimacy

Law and Philosophy - In this paper, I offer a novel account of entrapment. This account suggests that the wrongness of pursuing punishment in cases of entrapment consists of two distinct...     

The Generalizability of Police Legitimacy: Procedural Justice,Legitimacy, and Speeding Intention of South Korean Drivers

Asian Journal of Criminology - Empirical support for procedural justice theory in criminology is robust in the developed Western countries, whereas the results are mixed for non-Western or...     

Transnational Exchange of Forensic DNA: Viability,Legitimacy, and Acceptability

Forensic DNA profiling and databasing have become increasingly significant resources for criminal investigations in many jurisdictions. More recently, there have been attempts to recruit these technologies into the policing of cross-border organized crime, migration and terrorism. We examined the trajectory of one such attempt, the establishment and operationalisation of the Prüm Treaty within the European Union. We describe the way in which early technological considerations underlying DNA profile exchange, managed within law enforcement bureaucracies, have given way to a concern with broader societal issues and the necessity for a multifaceted scrutiny of this particular technolegal innovation. Central to this issue is the hybrid nature of exchange arrangements created as a result of the European Council Decision on Prüm (2008). The Prüm Treaty departs from the increasingly normalized framework for criminal justice cooperation, and at the same time, does not facilitate DNA exchange within a more traditional multinational instrument. We consider the significance and implications of the political decisions behind Prüm, as well as the consequences for the development of transnational DNA exchange in terms of three key issues: technical and scientific challenges (viability); legal challenges (legitimacy); and ethical and socioeconomic challenges (acceptability). Unless the Prüm structure is reformed, an important and promising initiative may remain encumbered with unresolved problems of legitimacy and acceptability. A lack of direct democratic involvement of many member states precluded the creation of consensus on issues such as privacy, data protection and due process issues, upon which legal and political regimes could then act.     

'Tell All the Truth, but Tell it Slant': A Poetics of Truth and Reconciliation

There is a voice that tries to speak the truth. This essay will suggest that the discourse on the South African Truth and Reconciliation Commission [TRC] has perhaps ignored this most invisible of things, and has looked for the truth of the Commission everywhere except where it might be found, if indeed it can be found at all. To the extent that it is possible to oppose the truth of the voice to another truth, it may be useful to make use of a notion of poetics; even a sublime poetics.     

Legitimacy,Political Equality,and Majority Rule

Abstract. This paper claims that the intuitive and widespread legitimating power of majority rule (MR) arises from the link between majority rule and the principle of equality of political opportunity. The egalitarian character of MR is established by exploring “puzzles” in democratic theory, such as the insensitivity of democratic voting procedures to unequal intensity of citizens' preferences, and the relationship between the principle of unanimity (sometimes thought better to respect citizens' equality) and MR. Special attention is directed to the relationship between political equality and equality in the outcomes of political decisions: The claim is made that the language of equal political opportunity captures well the idea of equal political influence, in the circumstance of disagreement about what is required to achieve equal treatment through the outcomes of political decisions.     

Repainting the Rabbithole: Law,Science, Truth and Responsibility

Law and Critique - An exploration of the connections between law, science, and truth, this paper argues that ‘truth’ is an evolving, rather than fixed, concept. It is a human creation,...     

中国语境下司法民主的理论建构——基于政治正当性与权力合法性视角

从政治正当性与权力合法性的角度检视新时期人民司法的实践,可以看到,尽管新时期司法民主的理论创新与制度实践所要解决的问题依然是如何有效地建立起中国司法的权威,但是它还需要解决好司法为民、便民的问题.因而,必须明确,中国司法民主的理论建构与司法实践必须在坚持法治与司法职业化的前提下,尽可能地确保社会大众能够理性、有效、适度地参与司法,以便于提高参与司法的便利性,扩大司法的参与性,增强司法的透明性,保持司法的中立性;同时,要坚持司法的法治原则,秉持依法司法的宗旨,遵循司法的程序性、专业性与规律性,通过程序的开放,贯彻司法的责任原则,理性、适度地参与司法活动.唯有此,才能够形成合力与合作,确保司法民主意涵的真正落实,推动司法权威的建成.     

Law, Morality, Coherence and Truth

Abstract . The author analyzes the relations between truth and law starting from the distinction between practical and theoretical spheres. He shows, first, how moral and legal statements and reasoning are connected with an operation of weighing and balancing different values and principles and how this operation is ultimately based on personal and intuitive preferences and feeling. The criteria developed by the theoretical sciences to define truth (coherence, consensus and pragmatic success) can only be translated into practical statements as criteria of correctness because we cannot affirm that a norm or value statement is true or false. The three criteria become interrelated indices of correctness: They are criteria for rational discourse.     

Youth, Police Legitimacy and Informal Contact

This paper explores the under-researched topic of young people’s attitudes towards police in two studies using structural equation modelling. The first study examines the influence of police legitimacy on the willingness of young people to assist police. The second study examines the impact of informal contact with police during a community policing project on young people’s willingness to assist police. Findings show that young people who view police as legitimate are more willing to assist police. Participation in the community policing project had a significant and positive influence on young people’s willingness to assist police independent of young people’s attitudes about police legitimacy.

自动驾驶汽车准入制度:正当性、要求及策略

自动驾驶汽车准入制度旨在为自动驾驶汽车市场化提供合法性支撑、预防和应对技术的不确定性挑战,寻求道德伦理的正当性。自动驾驶汽车技术所衍生出的新问题要求准入制度作出回应。一是要回应人机共生之后的法权关系改变;二是要回应车辆事故中的民事责任分配;三是要回应创新驱动下的产业发展诉求。完善自动驾驶汽车准入制度要在充分了解自动驾驶汽车的基础上,用一套合理而透明的标准来权衡和量化自动驾驶汽车的能力。有关准入标准本身需要进行修构;标准的取得过程也必须融合民主和理性的双重价值;为了避免过度规制制约产业发展,准入制度还要灵活运用不同的工具,并可以对缺乏适应性的强制性准入标准进行有限豁免。     

何谓合宪性解释：性质、正当性、限制及运用

法律的合宪性解释是指法律有两种甚或多种解释可能时,择取其中与宪法不相抵触的解释。合宪性解释是一种法律解释方法,更是一项法律解释要求。此种解释方法对于维护国家法秩序的统一与稳定不可或缺,其正当性源于权力分立原则下的司法自制理念。合完性解释有其运用上的限制,对于字义本身违宪之法律适用合宪性解释是对此种解释方法的滥用与误用。在美国、德国等实行宪法审查的国家,合宪性解释方法在其司法实践中得到了广泛运用。具有实效性的宪法审查制度在我国尚未真正建立,合宪性解释方法在我国的司法裁判中有无适用空间值得商榷。     

Truth,Discourse and the Subject

International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique -