Solidarity as a Practical Reason: Grounding the Authority of International Law

Netherlands International Law Review - This article discusses the concept and the principle of solidarity in international law. It is often argued that solidarity is a(n) (emerging) principle of...     

道德的可认知性与德育课程的形态：兼论儿童公共参与

道德是否可教,不同的道德理论可认知性各不相同,因而要求不同的德育课程形态。弱认知的亚里士多德美德伦理学强调通过善的实现活动养成德性,因而可以从活动课程的意义上构建学校的公共活动;非认知的杜威共同体主义伦理学主张通过学校的共同生活培养儿童的道德观念,因而可以从隐蔽课程的意义上营造学校公共文化的道德氛围;强认知的科尔伯格道德发展学说将公正观念看作是道德的核心,因而可以从研究性课程的意义上拓展学校公共治理的空间。增加儿童参与的积极性、广泛性和真实性是不同德育课程形态的共同要求,儿童公共参与建构了学校和班级生活的公共性。     

论康德道德神学对心灵秩序的自由根基重置

探讨伦理道德与宗教信仰的关系以确证道德发展秩序的根基是道德哲学的一个重要论域,康德以此建构其道德神学;基于对启蒙的内在困境与现代伦理悖谬的深刻领悟,康德试图通过道德理性自身的启蒙以及宗教的启蒙确证现代理性道德信念,使自主性自由的理念成为道德神学最强有力的建构性原理,不仅将上帝存有的道德证明的实在性意义限制于主体性确证的实践理性自由领域从而超越了自然实在论,而且促进了宗教信仰的世俗化进程,即实现了向"信仰性道德"这一现代信仰形式的根本性转变。然而,无论是基于意志自律的信仰性道德还是纯然理性限度内的宗教,都招致了诸多质疑与误解,最终把心灵秩序或弃恶向善这一心灵改变的根基问题呈现出来;对于心灵秩序的根基究竟应该是恩典自由还是理性自主自由的辨正,则涉及人文道德与宗教信仰关联的复杂性、康德自由理论对于"自我本性"与"主体性自由"的确然区分、现代人文主体的人性自救与上帝恩典之间存在着的矛盾张力等问题的认识。     

简析行政复议机关的被告地位问题

行政复议机关能否以及在什么情况下应当作为行政诉讼的被告,虽然我国行政诉讼法及相关司法解释对此已有了明确的规定,但理论界还有不同的看法.完全肯定说与完全否定说均有明显不妥,而折中说相对而言较为合理但也还有弊端,可以考虑修改相关法条.     

Grounding the Rule of Law

Abstract. Although the concept of Rule of Law has been revived and developed vigorously by mid-twentieth century conservative political theorists, contemporary legal positivists have not been impressed. The author reviews this confrontation, outlines the logic for a strong theory of Rule of Law, and surveys the leading attempts to provide compelling grounds for such a theory.     

Soldiers as Public Officials: A Moral Justification for Combatant Immunity

How can we make moral sense of the international humanitarian law doctrine of combatant immunity? The doctrine is morally shocking to many: It holds soldiers on both sides of a war immune from criminal prosecution for their otherwise criminal acts of killing, maiming, destroying property, etc., carried out as part of their country's war effort. That is, soldiers who kill as part of an attack benefit from the immunity just as much as those defending their country. Traditionally, just war theorists have tried to provide situation‐specific arguments to show that soldiers on both sides had a good moral justification for their actions. Recently, self‐styled “revisionist just war theorists” have suggested that the doctrine of combatant immunity is just a convention designed to minimize harm. In this article, I suggest that the moral foundation of the doctrine lies in the status of soldiers as public officials in the service of their country. The reason why we hold them immune from prosecution for their war‐making acts is that such acts are properly thought of as acts of a state, rather than as acts of a particular individual. And the reason why states are immune from prosecution for their acts is one of moral standing: No other state has the moral standing to tell another how to carry out the matters that define its jurisdiction. So as long as a country deems (however implausibly) that it must use force to defend itself from aggression, then it may do what is required to defend itself. No other state has the standing to prohibit such acts or to punish those who carry them out. This argument is rooted in an understanding of how individuals may interact as free and equal under law. It does not aim at the perfection of human action, but it does serve to eliminate the worst forms of tyranny.     

网络化：学习型组织的创建路径——以公安机关为例

学习型组织不是简单的组织学习,把公安机关的“大练兵”活动理解为就是创建学习型公安机关的观点是片面的。在组织理论中,学习型组织是针对理性官僚制组织由于职能分工、层级科制所形成的学习智障而提出的新型组织管理模式。因此,学习型组织的创建必须从组织形态的改革入手,把僵化的金字塔式的组织转变成沟通顺畅的扁平化组织。现代化的信息平台和网络化沟通,为我们提供了很好的实现组织扁平化的工具。只有在组织形态发生变革的情况下,结合公安机关建立的一系列长效学习机制,才能真正走上公安干警个人、公安机关自身不断学习、可持续发展之路。     

An Eye for an Eye: Proportionality as a Moral Principle of Punishment

The lex talionis of the Old Testament has been widely perceived—understandably,but mistakenly—as a barbaric law of retribution in kind.It is better understood as a seminal expression of restraintand proportionality as moral principles of punishment. Thishas been recognized from the earliest times. Over the interveningcenturies, the lex talionis has lost neither its moral significancenor its penal relevance. This is reflected in H.L.A. Hart'ssynthesis of modern retributivist and utilitarian theories ofpunishment and, again, in contemporary Canadian law throughthe recognition of proportionality as the fundamental principleof sentencing under the Criminal Code. The tension between thisfundamental principle and Canada's increasing resort to mandatoryminimum sentences of imprisonment is examined briefly in thislight.     

Spousal Rejection as a Risk Factor for Parental Rejection of Children

Limited information is available about the international generalizability of the common conclusion that marital discord tends to be associated with problematic parenting. Pakistan is a sociocultural context known for a high frequency of marital distress. Accordingly, this study draws from a sample of 270 Pakistani families with children between the ages of 9 to 13 years (M?=?11.21 years). In this study we explore the question: Are Pakistani children’s perceptions of maternal and/or paternal rejection related to their parents’ perceptions of spousal rejection? Results of a hierarchical multiple regression analyses showed that wives’ perceptions of husbands’ rejection predicted children’s perceptions of maternal rejection, as well as—but to a significantly lesser extent—children’s perceptions of paternal rejection. Similarly, husbands’ perceptions of wives’ rejection predicted children’s perceptions of paternal rejection, as well as—but to a significantly lesser extent—children’s perceptions of maternal rejection. Results of this research, along with the slim body of prior international research, suggests that the concept of “spillover effect” used to explain the association between spousal rejection and parental rejection may have widespread international applicability.     

Legal Reasoning as a Special Case of Moral Reasoning

Abstract. Moral statements are related to some ought- and good-making facts. If at least one of these facts exists then it is reasonable that an action in question is prima facie good and obligatory. If all of these facts take place, then it is reasonable that the action is definitively good and obligatory. Yet, moral reasoning is relatively uncertain. The law is more "fixed". Legal interpretatory statements ought to express a compromise between the literal sense of the law and moral considerations. They can be to a high degree both coherent and accepted. One may emotionally reject them but most people have a disposition to endorse a coherent and commonly accepted value system.     

检察机关排除非法证据的困境与出路——以非法言词证据为中心

鉴于检察机关的特殊地位,检察机关排除非法证据具有正当性,这也是非法证据排除程序的重要内容。但检察机关排除非法证据的实际效果并不乐观,其原因在于排除主体的定位模糊,非法证据的发现机制不畅,被告人滥用诉权,非法言词证据范围不明确,同步录音录像缺乏监督等。因此,检察机关应当从创新工作机制出发,逐步推动中国特色的非法证据排除规则制度的完善。具体而言,检察机关应当采取建立检察官排除非法证据的激励机制,扩展其发现非法证据的渠道,完善预案机制等措施,以提高检察机关排除非法言词证据的成效。     

The Jury as a Translation of Democratic Participation and Political Conflict

In this response to Valerie Hans's Presidential address, I use her “legal translating” term to argue that the implementation of liberal democratic structures in new democracies opens new opportunities to translate the jury system into and onto new democratic societies. While policy makers have concerns about the strength and vibrancy of lay participation in the legal system, policy makers' decisions to adopt trial by jury are not always democratic. Nonetheless, the consequence of the translation of trial by jury furthers democratic development. Using Nicaragua, Mexico, and Russia as case studies, I suggest that one goal of policy makers who attempt to adopt trial by jury is to reduce the discretionary power of judges who remain from the prior government. Comparative trial‐by‐jury research can contribute more to our understanding of democratic development than prior research has indicated.     

Participation in Prison Activities: An Analysis of the Determinants of Participation

The positive associations of participation in prison activities (e.g. socio-cultural activities, educational courses, sports activities, vocational training, etc.), including reduction of recidivism, improvement of wellbeing and contributions to self-worth, are increasingly recognized. However, little is known about the characteristics by which participants differ from non-participants. In response to this research gap, this study aims to examine the determinants of inmate participation in prison activities. The determinants are categorized as outlined by the importation (individual characteristics) and deprivation (prison life characteristics) frameworks. Survey data derived from a research project in a remand prison in Belgium (N?=?486) provided the empirical evidence for the multiple linear regression analyses. The findings indicate that individual deprivation variables are more likely to predict participation. However, our findings also highlight that the combined effects of importation and deprivation characteristics are more powerful in explaining activity participation. The article concludes by discussing some paths for future prison research and implications for theory and practice. It provides impetus to organize and increase participation in prison activities, taking into account the diverse characteristics, needs and competences of the prison population.     

Corporations as Moral Agents: Trade-Offs in Criminal Liability and Human Rights for Corporations

This article argues that a common way of defending corporate criminal liability creates a dilemma: it provides a strong justification for giving human rights to corporations. This result follows from approaches to punishment and human rights which predicate each on the status of moral agency. In short, if corporations are moral agents in a sufficient sense to attract criminal liability, they are eligible holders of human rights. The article also discusses the doctrinal application of this philosophical claim. Drawing on US jurisprudence, it illustrates how the European Court of Human Rights might deploy corporate moral agency as a theoretical foundation for its otherwise weakly-reasoned attribution of human rights to corporations. If proponents of corporate criminal liability are dissatisfied with these conclusions, they face difficult policy trade-offs: they must abandon the doctrine, or adopt alternative approaches to punishment or human rights.     

The Moral Justification for the Preventive Detention of Terrorists

The moral, as opposed to legal, justification for the preventive detention of terrorists is the topic of this article, and, in particular, for the preventive detention of members of extremist Islamist terrorist organizations, such as Islamic State (IS) and Al Qaeda (AQ). The article argues that preventive detention of terrorists is morally justified under certain circumstances. Its argument for preventive detention of terrorists is analogous to that used to detain enemy combatants as prisoners of war. However, rather than relying on the possession of the properties definitive of the legal status of a combatant, it relies on demonstrable possession of constitutive features of functionally integrated membership of a terrorist organization. Membership in this sense of a terrorist organization creates the presumption of a standing intention to commit murder, or at least to assist others to do so, in the service of the organization’s political ends.     

关于器官移植立法的若干思考

最近一段时间,器官移植和器官移植立法似乎成了社会各界颇为重视的热门话题。先是今年二月底九届全国人大第四次会议召开前夕,上海第二军医大学长征医院将该院去年７月所作的“全国首例脑死亡器官移植”的秘密向媒体公开,当事人称这样做的目的是希望“能够使今年的全国人大会议关注脑死亡在我国的立法问题”。接着湖北电视台于三月二十三日在全国首次全程实况转播了华中科技大学同济医院所作的一例肾移植手术,转播现场嘉宾中的多位专家谈到了     

从“总揽机关”到“最高机关”:“总揽”现象之宪法史阐释

在近现代中国立宪过程中,"总揽"现象是一种特殊的宪法现象。总揽机关,大致有君主、大总统以及代表国民的机关等。而关于总揽的对象,则有统治权、政务、治权和行政权等。从历史发展来看,"总揽机关"渐渐为"最高机关"所取代,后者成为宪法文件的常用术语。"总揽"现象反映了中国人对不同政体形式的认知逻辑。其背后彰显了传统法律文化中一元权力观对近现代中国立宪的影响。而"总揽"模式表现为行政集权制和民主集权制两种形式,在本质上区别于总统制、内阁制和委员会制。从历史发展来看,行政集权制与民主集权制渐渐走向融合。