Justice and Emotions

Sociological theories of justice emphasize (a) the level of discrepancy or congruence between shares of resources received relative to individuals’ perceptions of “just shares” and (b) the emotions aroused with either discrepancy or congruence. While these theories tend to have precision and elegance, they generally do not specify the full range of reference points that can be used to establish what is considered a “just share,” nor do they explore the complete array of emotions (and targets of these emotions) aroused during justice evaluations. In this article, an effort is made to expand the conception of reference points elicited in justice evaluations, the structural processes that determine the specific emotions that will be aroused during justice evaluations, and the psychodynamics that mediate among reference points, structural processes, emotional arousal, and targeting of emotional reactions onto self, others, and social structures. The article concludes with some hypotheses about the emotions aroused and targeted during justice evaluations employing varying reference points and arising under specific structural conditions.     

感情法益:谱系考察、方法论审视及本土化检验

感情法益自19世纪末的谱系演变表明,援用哲学、心理学的既有成果尝试定义感情,或立足于法益论的基本立场预设可被保护的感情类别,并非妥当的方法论路径。基于感情背后是否存有可回溯至宪法的基本权利这一立场转换,"不真正/真正感情保护犯"的二元筛查架构当为可行的思路。据此,"何种感情值得刑法保护"不应是一个预先判断的命题,感情应为个人或社会法益亦非是一个前置性论断。死者虔敬感这一既往被认为具有社会属性的感情法益可被证伪,其实质在于公民生前人格权的辐射保护;英雄烈士所承载的社会集体感情虽为共同价值观之表征,但在我国刑法第299条之一中仅作为依附于逝者人格权的罪责增量。安全感法益本身亦与社会秩序无涉,而是经公民的意思形成自由之受益权功能最终到达国家保护义务。     

Physician-assisted suicide in Oregon: a medical perspective

This Article examines the Oregon Death with Dignity Act from a medical perspective. Drawing on case studies and information provided by doctors, families, and other care givers, it finds that seemingly reasonable safeguards for the care and protection of terminally ill patients written into the Oregon law are being circumvented. The problem lies primarily with the Oregon Public Health Division ("OPHD"), which is charged with monitoring the law. OPHD does not collect the information it would need to effectively monitor the law and in its actions and publications acts as the defender of the law rather than as the protector of the welfare of terminally ill patients. We make explicit suggestions for what OPHD would need to do to change that.     

From Betrayal to Violence: Dante's Inferno and the Social Construction of Crime

This essay reflects on contemporary justifications for the grading of crimes, especially the conception that the gravity of crimes is rooted in "desert," understood to depend particularly on the offender's state of mind and to a lesser extent on the harm done or threatened to society.
Drawing on Dante's Inferno, the essay shows how the gravity of crimes is socially constructed. For reasons rooted in the sociopolitical forces, as well as the philosophy and law of his day, Dante found the crimes most deserving of punishment to be those of betrayal of trust. He conceived such crimes to be the most deliberate and to do the most damage to the social fabric. Contemporary law has found that crimes of betrayal are generally less deserving of punishment than crimes of violence; the essay shows how social and historical forces, including even the traditions upon which Dante drew, have shaped this choice. In the course of grading crimes in this way, the law has altered its conceptions of "intent" as well as of harm to society so radically that the notion of "desert" has lost much of its coherence. The importance of trust in modern society, moreover, has been misunderstood in the contemporary grading of crimes.     

《环境污染强制责任保险管理办法(草案)》除外责任之探讨

除外责任具体内容的设计应考虑公益和私益的平衡,确保其在及时、有效分散与移转风险,削减社会管理成本的同时兼顾承保人、投保人、受害人三方的私益。《环境污染强制责任保险管理办法(草案)》中将“不可抗拒的自然灾害”“环境污染犯罪”的除外责任限定于“致使第三者遭受的损害”不妥,保险公司不应为生态环境损害承担保险责任;将“环境污染犯罪”“故意采取通过暗管、渗井、渗坑、灌注等逃避监管的方式违法排放污染物”“环境安全隐患未整改”的除外责任限定于“直接导致的损害”具有合理性。对“不可抗拒的自然灾害”“环境污染犯罪”致使“第三者遭受的损害”应作限缩解释,使除外责任仅限于“致使第三者直接遭受的损害或生态环境损害”,除纯粹经济损失外,其他参与救援中遭受的间接损失均可通过“应急处置与清污费用”归入保险公司保险责任。     

警察情绪障碍的调适与身心健康

情绪状态是衡量心理健康的重要指标。受警察职业特殊性的影响,警察情绪障碍的患病率比较高,这给警察的身心健康和公安工作带来隐患,因此,掌握调控异常情绪的方法技巧,缓解或消除情绪障碍,对警察来说尤其重要,是警察心理保健的重要内容。     

Allocating specific benefits and burdens

Conclusion The foregoing is an example of how the rich accounts presented in Local Justice in America can inspire reflections on related issues. I am sure that others who do not share my utilitarian beliefs (some would call them “biases”) would find other ways of looking at these chapters. Whatever the perspective taken, the book raises important questions, and its emphasis on describing intentional rules is a useful approach for the social sciences. A single book cannot do everything, but I wish that this one had also taken a more evaluative point of view, telling us not just how decisions are made but also where they are going wrong according to some explicit standard, and how to improve them. I am sure that even that is considered arrogant by some, but to me it is the ultimate purpose of social science.     

Premerger notification: reporting and waiting period requirements--FTC. Notice of adoption of formal interpretation and request for comments

The Premerger Notification Office ("PNO") of the Federal Trade Commission ("FTC"), with the concurrence of the Assistant Attorney General in charge of the Antitrust Division of the Department of Justice ("DOJ"), is adopting a Formal Interpretation of the Hart-Scott-Rodino Act, which requires certain persons planning certain mergers, consolidations, or other acquisitions to report information about the proposed transactions to the FTC and DOJ. The Interpretation concerns the reportability of certain transactions involving a Limited Liability Company ("LLC"), a relatively new form of entity authorized by state statutes. Under the Interpretation, the formation of an LLC will be reportable if it will unite two or more pre-existing businesses under common control. Similarly, acquisitions of existing LLC membership interests will be reportable if they would have the effect of uniting two or more pre-existing businesses under common control.     

Procedural Justice,Outcome Favorability and Emotion

This study investigated the effects of procedural justice on discrete emotional responses. Based upon the cognitive appraisal model of emotion, it was argued that the experience of procedural justice (or injustice) allows individuals to derive meaning from favorable and unfavorable allocation decisions. Thus, procedural justice works with outcome favorability to produce a variety of emotional states. These ideas were tested in a laboratory experiment. As predicted, two happiness-related emotions (happiness and joy) and a sadness-related emotion (disappointment) showed only a main effect for outcome favorability. Two anger-related emotions (anger and frustration) were highest when an unfavorable outcome occurred because of an unfair procedure. Higher levels of guilt and anxiety were reported when an unfair procedure resulted in a favorable outcome. Contrary to predictions, a third happiness-related emotion (pride) showed only a main effect for outcome favorability.     

轻罪案件中的逮捕社会危险性条件研究——以故意伤害罪为例

通过对1600余份故意伤害致人轻伤案件的分析,发掘了轻罪案件中的逮捕社会危险性审查模式。"构罪即捕"现象得到很大程度缓解,以逮捕为原则的刑事强制措施适用思路正在松动。犯罪嫌疑人、被告人的人身危险性和妨碍诉讼顺利进行可能性是逮捕社会危险性审查的重点,犯罪行为严重程度对逮捕的影响作用在减少。近三年数据显示,逮捕社会危险性审查在逮捕条件中的作用出现一定程度的下滑。赔偿谅解和严重疾病是促成逮捕变更的关键原因。我国逮捕社会危险性审查模式存在一些问题,可能导致强制措施适用的不公。应确立社会危险性条件为核心的逮捕条件制度,适当弱化赔偿谅解在逮捕适用中的作用,限制违法犯罪史和社会联系的作用,并严格防范审前逮捕对量刑产生影响。     

食品药品监督执法中“数过并罚”之探讨

我国行政法体系中目前还没有＂数过并罚＂的概念或相关规定,但在食品药品监督行政执法过程中,会适用《药品管理法》、《食品安全法》、《保健食品管理办法》、《化妆品卫生监督条例》、《医疗器械监督管理条例》及配套的相关法规和规章,经常出现类似于刑法中的＂数罪并罚＂的情形,笔者暂且称之为＂数过并罚＂,不少执法者对此感到困惑。笔者结合法学理论知识简要分析＂数过并罚＂的概念和构成要件,分析部分部门规章对＂数过并罚＂的相关规定,从这些规章的立法精神和执法实践层面探讨＂数过并罚＂的适用规则。     

Psychopathy and instrumental aggression: Evolutionary, neurobiological, and legal perspectives

In the study of aggression, psychopathy represents a disorder that is of particular interest because it often involves aggression which is premeditated, emotionless, and instrumental in nature; this is especially true for more serious types of offenses. Such instrumental aggression is aimed at achieving a goal (e.g., to obtain resources such as money, or to gain status). Unlike the primarily reactive aggression observed in other disorders, psychopaths appear to engage in aggressive acts for the purpose of benefiting themselves. This is especially interesting in light of arguments that psychopathy may represent an alternative life-history strategy that is evolutionarily adaptive; behaviors such as aggression, risk-taking, manipulation, and promiscuous sexual behavior observed in psychopathy may be means by which psychopaths gain advantage over others. Recent neurobiological research supports the idea that abnormalities in brain regions key to emotion and morality may allow psychopaths to pursue such a strategy—psychopaths may not experience the social emotions such as empathy, guilt, and remorse that typically discourage instrumentally aggressive acts, and may even experience pleasure when committing these acts. Findings from brain imaging studies of psychopaths may have important implications for the law.     

Crossroads and Pitfalls of the Transition Period

The theme of the crisis of Russian society continues to occupy a leading place in our publications. However, the economic woes clearly felt by all have meant that discussions have been predominantly, if not exclusively, concerned with the economic component of the crisis. The reasons for the failures in this sphere are often sought in subjective weaknesses, in our habitual revealing of the "sources of evil," whether these be specific persons (Yeltsin and Gaidar, Chernomyrdin and Zaveriukha, Khasbulatov and Rutskoi), entire groups (the "nomenklatura" the "red—browns," the "agrarians," the "democrats," the "monetarists"), or external forces ("imperialists," "freemasons"), and so on. Accordingly, the solutions to the crisis are also quite simple: one need only replace an "incorrect" program with a "correct" one, remove the "sources of evil" and "agents of influence" from power, then all the problems will resolve themselves (by spring or fall, in a year or two, depending directly on the temperament of the particular healer of society and inversely on the degree to which he is informed).     

Appropriately Upset? Emotion Norms and Perceptions of Crime Victims

Victims who express less emotion in response to a crime are perceived as less deserving, less sympathetic, and they have less punishment assigned to the offender who committed the crime. This study considers the extent to which emotion norms underlie perceptions of victims who testify. Two studies investigate the circumstances in which emotional reactions to a crime are seen as "unusual" and whether a more general emotion norm underlies responses to victim testimony. We test a "victim-role" norm against a "proportionality" norm by crossing the severity of victim's emotional response (severe or mild) with the seriousness of a crime (serious or less serious). Results across two studies lend greater support to the notion that people expect victims to match the intensity of their emotional response to the seriousness of the event (i.e., a proportionality rule), although we also find instances in which expectations of the victim are not strong. Gender of the victim exhibited small and contingent effects. We discuss the relevance of emotion norms to legal settings.     

Exemption of certain systems of records under the Privacy Act. Proposed rule

This proposed rule would exempt the four system of records from subsections (c)(3), (d)(1) through (d)(4),(e)(4)(G) and (H), and (f) of the Privacy Act pursuant to 5 U.S.C. 552a (k)(2): The Automated Survey Processing Environment (ASPEN) Complaint/Incidents Tracking System ("ACTS"), HHS/CMS, System No. 09-70-0565; the Health Insurance Portability and Accountability Act (HIPAA) Information Tracking System ("HITS"), HHS/CMS, System No. 09-70-0544; the Organ Procurement Organizations System ("OPOS"), HHS/CMS, System No. 09-70-0575; and the Fraud Investigation Database ("FID"), HHS/CMS, System No. 09-70-0527.     

Recall of unpleasant emotion using memory-enhancing principles

Abstract

Two experiments are presented to examine the issue of memory for past emotions. Participants rated their emotional reactions on the occasion of watching a film, and in a subsequent session, they were asked to recall and rate the emotion as experienced when viewing it. In the first experiment, participants underestimated unpleasant emotion at recall, but their recall was improved with the presentation of a visual cue pertaining to the emotion-inducing film event. In the second experiment, participants were assisted in probing perceptual aspects of the event by means of memory-enhancing instructions underlying the Cognitive Interview. These participants consistently recalled emotional intensity, as compared to participants in the unassisted recall condition who underestimated prior emotion. This research suggests that ratings of prior emotion are easily influenced by features of the retrieval context, and that consistent recall may be achieved by memory-enhancing principles of the Cognitive Interview.     

Narratives of Feeling and Majesty: Mediated Emotions in the Eighteenth-Century Criminal Courtroom

This article considers the role of emotion in the eighteenth-century courtroom. It discusses the work of judges and magistrates in constituting and upholding a ‘grand narrative’, which legitimized English criminal law. This grand narrative was inherently emotional, activating patriotism and love of justice, but also fear of punishment through the performance of ‘emotional labour’ from the judgment seat. However, while performing the majesty of the law, judges attempted to balance a number of complicating factors, such as the rise of sensibility, the role of the press, and their own emotions about criminal justice. The growing presence of professional counsel from the end of the century also complicated the emotional tenor of criminal trials. Moreover, the majesty of the law was undermined and even corrupted by the representation of trials and executions in the popular press. Far from viewing displays of emotion as inappropriate, it appears that many contemporaries held emotion to be an integral part of trial process, and of the majesty of the law.     

A Criticism of the International Harm Principle

According to the received view crimes like torture, rape, enslavement or enforced prostitution are domestic crimes if they are committed as isolated or sporadic events, but become crimes against humanity when they are committed as part of a ‘widespread or systematic attack’ against a civilian population. Only in the latter case can these crimes be prosecuted by the international community. One of the most influential accounts of this idea is Larry May’s International Harm Principle, which states that crimes against humanity are those that somehow ‘harm humanity.’ I argue that this principle is unable to provide an adequate account of crimes against humanity. Moreover, I argue that the principle fails to account for the idea that crimes against humanity are necessarily group based. I conclude by suggesting that the problem with May’s account is that it relies on a harm-based conception of crime which is very popular, but ultimately mistaken. I submit that in order to develop an adequate theory of crimes against humanity we need to abandon the harm-based model and replace it with an alternative conception of crime and criminal law, one based on the notion of accountability.     

被害人有过错的故意杀人罪的死刑裁量研究——从被害与加害的关系切入

故意杀人罪是最典型的有被害人的犯罪。被害人加害在先引起他人加害 ,或被害人激化矛盾引起他人加害属于被害人有过错的故意杀人罪。在故意杀人罪死刑裁量中 ,被害人的过错是酌定从轻处罚情节。司法解释确立了“被害人一方有明显过错或对矛盾激化负有直接责任的故意杀人罪 ,一般不应判处死刑立即执行”的规则 ,但在司法实践中对被告人量刑时往往不予考虑。为了减少和限制故意杀人罪的死刑适用 ,在立法上有必要将被害人的过错这一酌定情节法定化。     

单位犯罪责任构造的反思与检讨

我国单位犯罪立法实行的是一种"严而不厉"的立法政策,但因对单位犯罪的形态结构存在误识,落于在一个犯罪行为的框架内寻求规制犯罪单位和犯罪单位成员刑事责任的窠臼,从而导致立法理念与司法实践的诸多矛盾与冲突。因此,有必要重识单位犯罪的形态结构。单位犯罪是一种特殊的犯罪聚合体,它包含两个犯罪:一个是单位成员犯罪,这是实在的犯罪;另一个是单位自身犯罪,这是拟制的犯罪。单位自身犯罪和单位成员犯罪之间密切联系,但是二者并非共同犯罪,而是独立的两个犯罪行为。既然单位犯罪是两个犯罪行为,那么单位与单位成员就是并列、独立的两个犯罪主体,其各自的刑事责任应相互分离。