The Politics of Rule of Law Reform: From Delegation to Autonomy

How can we understand the delegation of power and authority – for example, from a polity to an administrator - in a world of fragmented governance? In this paper, I introduce the practices of contemporary ‘rule of law’ and ‘governance’ reform, which reframe this question in politically powerful ways. These practices are increasingly important in development contexts, and beyond. Practitioners begin with the assumption that some sort of administration occurs in the development contexts in which they work. They then focus on how to convene a political community in which to embed – and potentially legitimate - that administration. They thereby reconfigure the question of delegation into one of autonomy – or managing the extent to and ways in which the administrative legal system self-produces. In doing so, I argue that contemporary rule of law practitioners wield constitutional power under the rubric of workaday administrative reform. At the same time, they efface their political accountability.     

试论国际法的渊源

国际法渊源是国际法学的一个基本概念,然而在现实中的使用却极其混乱。因而有必要对法的渊源的含义进行考察,以重新界定国际法渊源的内涵和外延,区分国际法渊源与国际法表现形式这对经常被混淆的概念。     

作为间接法源的习惯法——刑法视域下习惯法立法机能之开辟

罪刑法定原则仿佛是套在习惯法头上的一个法箍,对刑法领域中习惯法的机能释放,施加着巨大的压制性作用。然而,正是在对主流理论———“罪刑法定排斥习惯法”这一论断的正本清源之中,隐含着挖掘和开辟习惯法机能的深刻契机。本文即是在这一进路指引下,对习惯法在刑法领域的功能予以拓展的初步努力。本文将着重分析习惯法在刑事立法领域的机能。文章在必要性与可能性的分析框架内,对习惯法作为刑事立法的间接法源的功能予以了初步考察。进一步地,文章以刑事和解制度为切入点,例证和说明了习惯法之于刑事立法的重要渊源式价值。     

Law as a Parasitic Discipline

British university law schools are undergoing a radical change in the nature of legal research and scholarship. They were once dominated by pure doctrinal analysis but the new generation of legal scholars are either abandoning doctrinal work or infusing it with techniques and approaches drawn from the humanities and the social sciences. This essay argues that this change will lead to a greater ability to provide law students with a truly liberal education and will also enable the law school to take a much greater part in the intellectual debates to be found elsewhere in the university.     

刑诉法修改中关于辩护与代理若干问题

一、关于辩护人委托权辩护人委托权,即指在刑事诉讼中可以为犯罪嫌疑人、被告人委托辩护人的权利。一般而言,刑事追诉程序的结果是归属于犯罪嫌疑人、被告人本人的,其将来有可能承担刑事责任以及因遭受追诉而承受的经济损失、心理压力等等。     

Love as a Disadvantage in Law

Love is not often the explicit subject of legal discussion but when it is, it appears as a negative phenomenon that leads us to make bad decisions. This view of love is amplified in the context of commercial and economic transactions, where love, intimacy, and economic exchange are seen as operating under opposing principles. This article questions the accuracy and efficiency of law when it operates under both of these assumptions, and argues for a view that resonates more closely with the more realistic and complex relationship that exists between love and economic exchanges.     

作为概念的“经济法”——聚焦于“经济法”语词的多视角研究

“经济法”是经济法学中最重要的基本概念。“经济法”的概念研究是经济法学总论研究的重要课题之一。对作为概念的“经济法” ,从学术史、语言学和逻辑学等视角进行了语词缘起、范畴定位和文字训诂等三个方面探讨 ,并为经济法本体论和经济法学科论的基本范畴研究提供了相应的思路、方法和理论基础。     

作为动机体系的证据法

证据法常常是从法官的角度加以事后考虑的,而法官决定着是否采纳当事人提供的证据。本文对法律进行了事前审视,探讨了法律如何影响考虑起诉或者正进行诉讼的当事人的行为。由这一角度观察,证据规则产生了各种激励与抑制的动机。在讨论很常见的、尤其是那些源自对抗制的激励与抑制动机之后,本文将探讨很多并不令人熟知的且会影响创造、保存和提出证据的激励与抑制动机。在结论部分,本文将考虑一些对于将证据法作为一个动机体系的观点的异议。     

Law as a branch of applied psychology

Because the law for the most part consists of a system of rules for the control of human social behaviour, the law may be taken as a branch of applied psychology. However, one may well ask how good lawyers are as applied psychologists. As a partial answer to this question two well-known issues in criminal law are explored; the deterrent effect of punishment and the viability of the presumption of innocence. It is argued that lawyers, although they tend to speak in confusing ways about the deterrent effect of punishment, in practice show themselves to be pretty good applied psychologists. This is different with respect to the viability of the presumption of innocence, as they do not appear to realize that the ways in which criminal trials are commonly conducted cannot but violate this sacred principle of due process.     

Religion as a Source of Peace and Violence

Fleeing persecution in 615, the disciples and followers of Prophet Muhammad found refuge in Africa. In this “First Hijrah,” or migration, they had escaped Mecca and sought safety in Aksum (now northern Ethiopia and Eritrea), the land of an African Christian king. It was a crucial moment in the development of Islam. Africa, a place of many religions, was seen, rightly, as a safe haven.

Like Islam, Christianity had faced opposition and persecution in its early years. The practitioners of both religions knew firsthand what it meant to suffer violence from those who disagreed. How can it be that religions born of persecution are now themselves used for extreme violence? And why, specifically, in Africa today? How can Africans prevent and fight against extremism and what can we all learn from this experience?     

Senate Apportionment as a Source of Political Inequality

Political scientists have long known that the equal representation of states in the U.S. Senate and the placement of state lines might disadvantage politically relevant groups, granting some citizens greater voting weight in the chamber. Yet we lack systematic, longitudinal evidence that identifies the groups disadvantaged by Senate malapportionment, the sources of this disadvantage, and probes the policy consequences. In this article, I compare each state's liberalism and racial composition with its relative voting weight in the Senate over time. Additionally, I examine whether roll‐call coalitions in the Senate map onto these patterns of state ideology and racial composition.     

Delegation of Regulatory Powers in a Mixed Polity

It is a common place of academic and political discourse that the EC/EU, being neither a parliamentary democracy nor a separation‐of‐powers system, must be a sui generis polity. Tocqueville reminds us that the pool of original and historically tested constitutional models is fairly limited. But however limited, it contains more than the two systems of rule found among today's democratic nation states. During the three centuries preceding the rise of monarchical absolutism in Europe, the prevalent constitutional arrangement was ‘mixed government’—a system characterised by the presence in the legislature of the territorial rulers and of the ‘estates’ representing the main social and political interests in the polity. This paper argues that this model is applicable to the EC, as shown by the isomorphism of the central tenets of the mixed polity and the three basic Community principles: institutional balance, institutional autonomy and loyal cooperation among European institutions and Member States. The model is then applied to gain a better understanding of the delegation problem. As is well known, a crucial normative obstacle to the delegation of regulatory powers to independent European agencies is the principle of institutional balance. By way of contrast, separation‐of‐powers has not prevented the US Congress from delegating extensive rule‐making powers to independent commissions and agencies. Comparison with the philosophy of mixed government explains this difference. The same philosophy suggests the direction of regulatory reform. The growing complexity of EC policy making should be matched by greater functional differentiation, and in particular by the explicit acknowledgement of an autonomous ‘regulatory estate’. At a time when the Commission aspires to become the sole European executive, as in a parliamentary system, it is particularly important to stress the importance of separating the regulatory function from general executive power. The notion of a regulatory estate is meant to emphasise this need.     

法的渊源的价值实现

实现法的渊源价值,先要认知法的渊源价值.在自觉和自发两种法的渊源价值实现形式中,注重以法的渊源价值理念推助法的渊源价值实现,而不是盲目或被动地将法的渊源转换为法,应为法律人的努力方向.法的渊源的价值实现,应适合社会的需要.社会生活有民间自治型和国家管理型之分,但其关联是无以割裂的,传统法的渊源理论或偏重于前者,如科克、布莱克斯通和卡特的理论,或偏重于后者,如霍布斯、边沁和奥斯汀的理论,因而都不足为训.不是所有法的渊源都适合转化为法,法律人应善于选择那些健康、向上且同法的特质相吻合的法的渊源,予以提炼、整合和改造制作,以形成良法美制.