调解、诉讼与公正——对现代自由社会和儒家传统的反思

调解作为一种解决纷争的做法和制度 ,是我国传统法律文化尤其是儒家法律文化的重要部分。在现代法治社会中 ,调解否已经过时 ?本文首先介绍中国的调解传统的哲学基础、理论和实践 ,然后从现代自由主义和法治理想的角度 ,对传统的调解提出批判。本文进而指出 ,调解在当代的中国以至西方仍有顽强的生命力 ,西方学者对调解作为“解决纠纷的另类选择”之一提出了多种理论依据 ,其中不少与儒家传统的睿见不谋而合。本文的结论是 ,经过“创造性转化”后的调解理论与实践能对现代文明作出贡献 ,由此可见 ,传统文化遗产在现代仍是十分宝贵和有用的资源。     

调解诉讼公正--对现代自由社会中儒家思想的思考

任何社会中,对因个人争端而引起的冲突存在着不同的解决途径。诉讼仅是由避免发展到暴力等诸多可能性的一种选择。解决争端的多样性以及任一文化中存在的多种社会制约力的选择,使得人们把自己的理想、对自身的透视以及各种关系的特质与他人联系起来。它们表明,人们是希望避免冲突、抑或鼓励冲突,是克制抑或友好解决。在解决争端的过程中,最基本的社会价值得以最终体现。——杰罗德·思·奥尔巴克,《没有法律的公正?》(纽约:牛津大学出版社,1983),第3—4页一、引言任一社会为解决争端而建立的各项制度,其性质、结构和运作都是对该社会的文化、哲学、世界观以及社会模式和经济政治组织的一种反映。众所周知,在中国传统社会中,人们对普通的民事纠纷采取的解决途径更多的是调解而非诉讼,调解的原理及实践深受儒家思想的影响,调解制度迎合、满足了传统社会的各种需要。而这种社会则以小农经济、社会裙带结构、松散的中央集权统治模式以及强调社会稳定而非经     

From Status Politics to Technocratic Pluralism: Toleration of Religious Minorities in Canada

This paper examines patterns of public regulation as they may emerge throughout the West from controversies constructed around new and minority religions. Following Beckford's and Richardson's insights about the sociological exemplarity of these issues, we argue that evidence for some of these trends as well as clues for interpretation can be found in contemporary Canadian constitutional development that parallels and at times precedes that of Europe. Close examination of notions of society and religion found in more than 35 religion cases brought before the Canadian Supreme Court from 1951 to 1997 lead to the conclusion that beside governmental and parliamentary intervention, legal management of religious pluralism is assuming a decisively normative turn. Notions such as status politics, civic ethos, and technocratic pluralism are offered as an explanation of this trend.     

中世纪刑法对现代西方刑法思想的人文指归

提起中世纪西方刑法学,"刑法文明史中的漫漫长夜","蒙昧、残酷、专制"等负面评价遮掩了其应有的光辉。其实,在陷于四分五裂的战争时期的欧洲,强调抑制原欲、注重心灵赎罪、提倡群体理性的教会刑法思想具有特殊意义的人文性与进步性。它以强大的宗教力量使得欧洲刑法观念呈现出空前整齐、划一的状态;这种历经千年积淀而成的刑法文化,维持并传承了欧洲统一的价值观念与信仰体系,对近、现代西方刑法思想的发展起着重要的提挈与引导作用。     

From Public Interest to Private Rights: Free Speech, Liberal Individualism, and the Making of Modern Tort Law

Drawing on John Witt's 2007 book , Patriots and Cosmopolitans: Hidden Histories of American Law, this essay explores the role of the interwar civil liberties movement in rehabilitating the discourse of rights and privatizing the American welfare state. In the years after World War I, most proponents of free speech were hostile to Lochner- era legalism and preferred to pursue civil liberties through legislative and regulatory measures as a means of advancing the public interest. By the onset of World War II, however, they had instead adopted a court-centered strategy that emphasized individual autonomy. The popular and political resonance of their new state-skeptical vocabulary suggests that post-New Deal liberalism in America was a hybrid of classical and Progressive approaches.     

《印度之行》中的权力和话语

《印度之行》里,不同的种族、性别、政治和社会话语相互冲撞、交织、聚合,形成一个紧张的话语场。福柯的权力和话语的理论以及社会语言学理论有助于我们从知识与话语、规训与身体等方面分析文本里所隐含父权殖民社会的规训权力的运作机制,揭示权力对个体的腐蚀,展示权力客体对规训进行的反抗以及新话语在抵制抗衡中产生,从而重新解读福斯特作品。     

Fighting Organized Crime, with Particular Reference to Mafia Crimes in Italy

The special legal regulation of mafia crimes in Italy operatesat very different levels: at that of investigations, of criminalproceedings, of sentencing and of imprisonment. This legal regimeis based on a double track treatment, which generally speaking,is very harsh, but may turn especially lenient whenever a personopts out of a criminal group and decides to cooperate with theprosecution. In the daily fight against mafia crimes as wellas criminal offences perpetrated by other criminal organizationsor ‘associations’, the role of ‘cooperatingwitnesses’ has proven to be of pivotal importance. Anotheruseful prosecutorial tool developed by the Italian courts isthe notion of ‘external support to mafia associations’,although this now needs to be laid down in legislation. It is,in this writer's experience, the coordination of investigationsthat is critical to the prosecution and punishment of mafiacrimes, and to the dismantlement of mafia associations.     

Modern screening strategies in analytical toxicology with special regard to new benzodiazepines

Screening procedures for the detection of toxicologically relevant substances have become of ever-increasing importance due to the rapid development of new substances. Identification methods must be simple, sensitive, and practicable. This article describes standardized chromatographical (corrected Rcf values, retention indices) and immunological methods (enzyme-multiplied immunoassay technique, fluorescent polarization immunoassay) with special regard to the screening of some newer benzodiazepines, a class of substances that is still expanding. Some of these new compounds may be integrated in well-known screening procedures (via aminobenzophenones and detection by the Bratton-Marshall reagent); others require special concepts for detection. The problems are indicated and discussed, including the use of high-pressure-liquid chromatography and mass spectrometry; recommendations are given.     

Postmortem Serum Tryptase Levels with Special Regard to Acute Cardiac Deaths

An elevated serum tryptase concentration is considered a specific marker for systemic mast cell activation, a central feature of anaphylaxis. However, in some cases of acute cardiovascular death, high concentrations of serum tryptase are also observed. We compared the postmortem serum tryptase concentrations in 74 cases assigned to the following four groups: anaphylactic deaths (Group A, n = 20), acute cardiac deaths (Group ACD, n = 30), acute dissecting aneurysm ruptures (Group ADA, n = 10), and controls (Group C, n = 14). Additionally, the cutoff between Group A and the other groups was calculated using receiver‐operating characteristic (ROC) curve analysis. Tryptase concentrations were markedly elevated in Group A (p < 0.001), Group ACD (p = 0.015), and Group ADA (p = 0.005). The optimal cutoff was 43 ng/mL, the sensitivity was 90%, and the specificity was 98%. While elevated concentrations of tryptase were noted in practical autopsy cases, due attention should be paid to the differential diagnosis between anaphylactic and acute cardiovascular deaths.     

哲学问题的审美解答——论庄子把握哲学问题的特殊方式

庄子思想涉及许多普遍永恒的哲学问题,但它却是以一种审美的方式来解决这些问题的.物我两忘、超越主客体的观照视角,非功利、非实用的价值取向,游玩、游戏的趣味和态度,都体现出庄子以审美的方式来化解哲学难题的特殊方式.庄子学说最终要引导人们进入"至美至乐"的境界,这使得其哲学具有不同于以追求真理为目标的西方哲学和以追求善为目标的儒家哲学的特点.     

台湾地区大学教师权利保护的反思和借鉴

台湾虽然建立了大学教师权利保护的完备体系,但尚有许多值得反思之处,一是申诉和诉愿衔接不当,导致救济程序复杂化;二是由于特别权力关系的影响,司法救济范围有限;三是公校和私校采用双轨制的救济模式。台湾的这些不足具有重要的警示意义,大陆应该将申诉与行政复议、诉讼恰当衔接,建立大学教师系统的权利救济体系,扩大司法救济范围,并对公校和私校进行一体保护。     

Molecular Pathology of Pulmonary Edema in Forensic Autopsy Cases with Special Regard to Fatal Methamphetamine Intoxication

Pulmonary edema is a common finding in fatal methamphetamine intoxication. However, the underlying mechanism remains poorly understood. This study investigated the molecular pathology of alveolar damage involving pulmonary edema in forensic autopsy cases. Seven candidate reference genes (RPL13A, YWHAZ, GUSB, SDHA, GAPDH, B2M, and ACTB) were evaluated in the lung by the geNorm module in qBase^plus software. RPL13A, YWHAZ, and GUSB were identified as the most stable reference genes. Using these validated reference genes, intrapulmonary mRNA expressions of matrix metalloproteinases (MMPs), intercellular adhesion molecule‐1 (ICAM‐1), claudin‐5 (CLDN‐5), and aquaporins (AQPs) were examined. Relative mRNA quantification using TaqMan real‐time PCR assay demonstrated higher expressions of all markers except for AQP‐5 in fatal METH intoxication cases. These findings suggested alveolar damage and compensatory response in fatal METH intoxication cases. Systematic analysis of gene expressions using real‐time qPCR is a useful tool in forensic death investigation.     

Maltreatment Chronicity Defined with Reference to Development: Extension of the Social Adaptation Outcomes Findings to Peer Relations

The purpose of this study was to extend work seeking to improve research definitions of chronic maltreatment by contrasting a definition based on patterns of CPS reports across childhood developmental stages to a previously used definition based upon duration of the period including reports, using teacher-estimated peer relations to represent an extrafamilial outcome domain of social adaptation. The sample includes 387 children who are participating in a multi-site longitudinal study and had been reported for abuse or neglect to CPS between birth and age 8. CPS records from this time period provided the basis of two chronicity constructs: 1) an ordinal categories (OC) definition based upon four Eriksonian stages, and 2) a durational definition (time between first and last reports). Block-wise regression analyses were conducted to examine the relative degree to which the two chronicity definitions contributed to prediction of teacher-estimated peer relations at the age 8 interview. Chronicity characterized with reference to developmental stages significantly predicted troubled peer relations, with child age, sex, and minority status, family income, geographic location, and time of first report taken into account. The effect was pronounced with regard to aggressive peer relations. Duration of maltreatment reports also predicted aggressive peer relations, but significantly less so than did the OC definition. The findings support the view that maltreatment chronicity is usefully defined by taking children’s development into consideration to characterize patterns of maltreatment across developmental stages. Practice and research implications are suggested.     

新文科建设背景下艺术学科综合性发展的思考

2019年新文科建设的启动意味着人文社会科学领域将经历一次全新的改革,新文科建立在尊重并继承传统文科特色和构成的基础上,建设方向是整合文科资源、探索创新发展。新文科路线的提出是为了共振新时代的社会发展需求,满足时代现实期望,尤其是回应互联网时代、智能时代对人才培养提出的全新挑战。如何建设新文科、艺术学科又该如何适应新文科的改革发展等议题,都需要进一步深入研究。本文也更侧重对新文科之于艺术学科的发展改造来透视新文科的关键性发展问题。     

Economics of the 96/92 Directive with Reference to Italian Electricity Market Liberalisation Process

This paper contains an economic review of the law regulating the liberalisation process now under way in the Italian electricity sector. The legal framework is presented focusing first on Community rules, in particular Directive 96/92, which provides for common rules for the internal electricity market, and then on the recent Italian implementation decree no. 79 of 1999. The part concerning the law is then connected with a part where the issue of liberalisation of the electricity sector is tackled in economic terms, with special focus on transition from the public monopoly that has characterised the Italian experience for some time, and also on the new interpretation of the traditional theory of natural monopoly. On the base of the legal framework and the economic theories, the features of each components of the electricity sector is finally analysed in terms of competitiveness: in particular, the future market configuration is considered for generation, for transmission, for distribution, and, for the whole market.     

Food Security and the Right to Food in the Discourse of the United Nations

Abstract: The definition of food security now most commonly used, that of the 1996 World Food Summit, bears considerable resemblance to the definition of the right to food. Yet a right-to-food based approach to food security is distinct from other approaches to reducing hunger and malnutrition and complements food security considerations with dignity, rights acknowledgment, transparency, accountability, and empowerment concerns. It is based on an a priori commitment to the value of human dignity and makes the individual an agent of change in a way that enables him or her to hold governments accountable and to seek redress for violations of his or her rights. A right-to-food approach is not based on vague and replaceable policy goals subject to periodic redefinition, but on existing, comparatively specific and continuously becoming more precise obligations undertaken by governments. Therefore, the right to food cannot only be regarded as a means to achieve food security, but must be seen as a wider, more encompassing, and distinct objective in itself. Realizing the right to food should, furthermore, be part and parcel of rights-based approaches to development that aim to implement all human rights obligations which States have committed themselves to under human rights law.     

“心理教育”质疑——兼论“心理健康教育”的逻辑悖论

在中国,心理教育开展的轰轰烈烈,但是心理教育是什么却没有定义.这是非常不正常的现象.教育是人存在的形式之一,而人又是观念的集合体,因此,无论一个人心理健康还是不健康,它们都是人对现实生活的一种反映.其实,心理教育是一个虚假命题,存在着严重的逻辑悖论.实施心理教育的结果只能够增加更多的"心理不健康"的个体,这绝不是危言耸听.     

Understanding Parental Gatekeeping in Families with a Special Needs Child

Supporting the positive development of a special needs child is especially challenging when parents have separated or divorced. Invariably, there is an increased need for collaborative co‐parenting wherein information is shared and intervention plans can be implemented effectively. In this article, the evolving literature on parental gatekeeping is applied to families with special needs children, as it offers a useful model for understanding the strengths and liabilities of co‐parenting relationships. We describe some of the typical and unique gatekeeping dynamics that occur when children suffer from developmental, physical, and/or psychiatric syndromes that require specific treatment and specialized parenting skills. Examples of both restrictive and facilitative gatekeeping are described as they manifest in these families. Implications for decision making are also discussed.