上下位法间的效力优先与适用优先——兼论自治法规、经济特区法规和较大市法规的位阶与适用

效力优先是下位法与上位法抵触的情况下,上位法的＂效力优于＂下位法,其根据是梅尔克—凯尔森位阶理论的第一要义：上位法是下位法的效力依据,下位法的创制应当符合上位法预设的创制方式和内容;而适用优先是下位法符合上位法的情况下,下位法的＂适用先于＂上位法,其根据是梅尔克—凯尔森位阶理论的第二要义：下位法是上位法的具体化和个别化。上位法优于下位法属于效力优先,不存在例外。自治条例、单行条例和经济特区法规的位阶低于法律、行政法规,其变通规定优于法律、行政法规不是效力优先的例外,而属于适用优先。较大的市的地方性法规的位阶低于省级地方性法规,其与省级法规适用中的难题也可从效力优先与适用优先的区分中寻求解答。     

Conditions making for success and failure of denial and deception: Nonstate and illicit actors

Conclusion Deception is integral to illicit organizations. Cover is a strategic necessity that, at a great cost in efficiency, allows illicit organizations the opportunity to achieve their objectives. The revolutionary organization is, in fact, an alternative reality that seeks to be invisible except when it needs to propagate a version of the truth and to bolster the impact of its armed operations. In the case of the truth, remarkably little deception is deployed. The revolutionaries consider their faith to be inviolate and convincing, without need of apology or equivocation. Reality is often visible. Islamic Jihad preached the truth, the IRA hid it for two years and the Sicilian Mafia makes the hidden truth yield public respect. In operational matters, much that takes place underground is focused on maintenance, supply and distribution, command and control, and communication that needs to be hidden but need not otherwise be duplicitous. Secrecy apart, most operations focus on obvious targets. Strategic deception is rare.     

National Parliaments and European Integration: What We Know and Agenda for Future Research

The role of national legislatures in European integration first received serious attention in the mid-1990s in connection with debates on the EU's democratic deficit. Since then, both academics and politicians have entered a lively debate on how best to involve national parliaments in EU affairs. The purpose of this article is to examine critically the state of research on the role of national parliaments in European integration and to use that existing knowledge to suggest avenues for further research. The main argument is that through focusing almost exclusively on scrutiny of European affairs, the literature has failed to acknowledge the multiple constraints that impact on legislatures. There is a demand for more theory-driven analyses of actual behaviour that extend beyond describing formal procedures and organisational choices. Future research should also pay more attention to the strategies of political parties and to the incentives of individual MPs to become involved in European affairs.     

Retributivism: The Right and the Good

Victor Tadros claims that punishment must be justified either instrumentally or on the grounds that deserved punishment is intrinisically good. However, if we have deontic reasons to punish wrongdoers then these reasons could justify punishment non-instrumentally. Morever, even if the punishment of wrongdoers is intrinsically good this fact cannot contribute to the justication of punishment because goodness is not a reason-giving property. It follows that retributivism is both true and important only if we have deontic reasons to punish. Tadros also claims that the constitutive aim of punishment is to inflict harm or suffering on offenders. On the contrary, the constitutive aim of retributive punishment is to inflict (justified) wrongs on offenders that are proportionate to the (unjustified) wrongs they commit. Indeed, punishment should involve the least harmful wrong that is proportionate to the wrongfulness of the offense, adequate to facilitate recognition, and (perhaps) conducive to deterrence.     

Fear of victimization and sensitivity to risk

The degree to which a crime is feared is dependent not only on the perceived risk of that crime, but also on individuals' sensitivity to risk. We show that sensitivity to risk varies systematically across offenses in proportion to their perceived seriousness. Based on these findings, some general principles about fear are stated, and the relation between this work and some of our earlier work on fear is discussed.     

Income Inequality and Property Crime

Cultural issues that act as intervening variables in the inequality-crime relationship have been neglected in the literature on inequality and crime. The present article explores the interaction between inequality and variables thought to be associated with a perception that inequality is illegitimate. The central argument is that the strength of inequality-crime relationship is dependent on a contextual factor, a radical egalitarian culture promoting the view that inequality is illegitimate. Data on property crime from 62 nations are analyzed. The results generally indicate that neither inequality nor the interaction between inequality and egalitarian culture exerts independent effects on property crime.     

Use and Abuse of the Internet in Fraud and Money Laundering

The Internet provides an ideal opportunity for defrauding those who are less technologically advanced or who are enthralled by the technology. Yet the frauds and other financial crime which are perpetrated on the Internet are, in principle, no different from those which have been committed over time. The advantages to the criminal of the Internet as against most other media are that there is an opportunity to make vast numbers of cold calls at a cost which borders on the free, the opportunity to create credibility by the use of legitimate imagery from reputable sources and to secure the proceeds of the crime not only anonymously but also in jurisdictions where the pursuit of the offender is difficult. There is also the fact that the prospective victims have been conditioned to believe that which appears on a computer screen: the suspension of incredulity and caution is deeply engendered. For that most pure of financial crimes, money laundering, there is the advantage of ease of communication, the simplicity of setting up schemes, with ready access to otherwise remote geographical and legislative locations. Yet there is another issue which does raise serious concerns, but which is not generally regarded as an offence: the provision of information and advice where there is an element of transfer pricing, with the consequent avoidance of taxes. The challenge is to bring about a system of regulation which enables free exchange of information whilst limiting the opportunity to trick people who are already conditioned to believe what they see on a computer monitor. The Internet does not create new frauds nor new money laundering schemes. It is merely a facilitator that has a high level of credibility. And it creates opportunity for the export at low prices of high value added services to the detriment of local economies, for the first time making onshore facilities fully available via offshore centres, with the consequence that it will become increasingly difficult tell the good from the bad.     

Patricides and Step-Patricides in Ghana: Victims,Offenders, and Offense Characteristics

There is a paucity of empirical research on patricide in Africa and many non-Western societies. To help fill this scholarly vacuum and contribute to the literature on patricide, the current article presents the results of an analysis of 18 cases of patricide and step-patricide that occurred in Ghana during 1990–2016. Given the exploratory nature of the study, no hypotheses were constructed or tested. Findings indicate that patricide is a rare crime, that sons were disproportionately more likely than daughters to kill their fathers, and that adult children were more likely than adolescent and pre-pubertal children to commit patricide. The results further show that a significant number of the patricides were triggered by offender mental illness. The predominant circumstance, however, was conflict between son and father over a myriad of issues. Three of the 18 patricides were influenced by the perpetrators’ beliefs that their fathers were maleficent witches who had bewitched them. Also, patricide offenses were typically spontaneous rather than premeditated. A recommendation is provided for continued research on patricide in Ghana and other non-Western societies to shed light on an empirically-neglected but vital topic.     

Logic,licensing and public relations

This article focuses on the need to move past First Amendment concerns to foster a meaningful debate about the licensing of public relations practitioners. Whether, and to what extent, public relations should be licensed is not the subject of this discussion. Instead, this article uses Aristotelian logic to dispute the spurious conclusion that any licensing scheme for public relations work and / or the individuals who perform it is unconstitutional on its face. Relying on First Amendment jurisprudence, the article demonstrates that some restraints on speech in the form of licensing are allowed, that not all public relations work involves protected speech or press, that there is a similarity to the constitutionally permitted licensing of certain speech‐related professions and that a hypothetical case can be constructed regarding those who could qualify as licensed public relations counsel. The article concludes that the First Amendment does not necessarily prevent licensing certain public relations practitioners.     

Self-Defense and Giving Rise to Cost: On Innocent Bystanders,Threats, Obstructors,and Obstacles,and the Permissibility to Harm Them

Philosophers have had trouble defending the common sense view that it is permissible to impose significant cost on an innocent person who is about to harm you to prevent the harm from occurring. In this paper, I argue that such harm can be justified if one pays attention to the moral significance of imposing a cost on others. The constraint against harming people who give rise to cost by their presence or movements is weaker than the constraint against harming bystanders. Moreover, I argue that people who give rise to cost have a duty to take on some of that cost to help protect the person under threat.     

Public support for pro-choice abortion policies in the nation and states: changes and stability after the Roe and Doe decisions

In 1973 the United States Supreme Court ruled that abortion could be had practically on request during the first 3 months of pregnancy. This article discusses whether the decision led to more public support for that position, and where in the U.S. the increase in support has been most drastic. The most recent public opinion polls indicate about 60% public support legalized abortion, while it was only 45% before 1973. Support has also increased even if pregnancy is not judged to be detrimental to the mother's health, or if it is not the result of rape and/or incest, but even if it is simply requested for economic or purely personal reasons. People under 30, with college education, men and Protestants, seem to be the staunchest supporters of abortion on demand. There has also been an increase in the number of Catholics supporting abortion. Support for abortion increased in most states between 1969-1973, particularly in the West and in the Northwest. The fight to deny federal funds for abortion is still raging in Congress; some studies indicate that the religion of the legislators is the most powerful predictor of voting on abortion, and that the decision is a very personal one, and not easily altered by the lobbying of groups on either side.     

Recordkeeping and reporting under Title VII and the ADA--EEOC. Final rule

This final rule is based on two separate Notices of Proposed Rulemaking (NPRM) published on February 13, 1989 (54 FR 6551), and March 5, 1991 (56 FR 9185). This final rule amends 29 CFR part 1602, EEOC's regulations on Recordkeeping and Reporting under title VII of the Civil Rights Act of 1964 (title VII), to add recordkeeping requirements under the Americans with Disabilities Act of 1990 (ADA). It increases the records retention period required in part 1602 for title VII and the ADA from 6 months to one year. The Commission also is adding a new subpart R to part 1602, 29 CFR 1602.56, that will clarify that the Commission has the authority to investigate persons to determine whether they comply with the reporting or recordkeeping requirements of part 1602. In addition, the Commission is making several minor changes to sections 1602.7 and 1602.10. The Commission also is deleting section 1602.14(b) of its title VII recordkeeping regulations, which provides that the section 1602 recordkeeping requirements do not apply to temporary or seasonal positions. Information regarding such employees now must be reported on Standard Form 100 on September 30 of each year, in the same fashion as information regarding permanent employees is reported. Similarly, the Commission is deleting sections 1627.3(b) and 1627.4(a)(2) of the Age Discrimination in Employment Act recordkeeping regulations, which provide for a 90-day retention period for temporary positions, and is clarifying the mandatory nature of such recordkeeping. The Commission is not issuing a final rule on proposed section 1602.57 at this time.     

论社群主义对罗尔斯正义观的挑战与批判

社群主义是在批判以罗尔斯为代表的新自由主义的基础上蓬勃发展起来的。社群主义对罗尔斯正义论的逻辑起点、价值取向和终极目的等方面进行了全面的批判。在逻辑起点上，罗尔斯建立起了个人——社群观，而社群主义建构的是社群一个人观；在价值取向上，罗尔斯认为“权利优先于善”，个人权利是正义的价值取向；而社群主义建构的“善优先于权利”的观念，强调个人权利必须在社群中去实现。在终极目的上，罗尔斯追求正义作为社会制度的首要美德；而社群主义者认为正义只是美德之一，并强调公益及将其作为社群的终极关怀。社群主义的批判立场是一种不具有建设性的理论挑战。但社群主义理论对我国法治建设存在可能的启示。     

Concept or Context? The Exchanges between Ross and Kelsen on Valid Law and Efficacy

The aim of this paper is to point out the salient patterns of agreement and dis- agreement between Alf Ross and Hans Kelsen's analyses of valid law and efficacy. I argue that the disagreement has the character of systemic postulation on the part of both interlocutors. My main thesis is that the disagreement is not one of philosophical principle, but one that must be resolved on the basis of pragmatic considerations, i.e., the choice between the two valid-law schemes pertains neither to necessity nor to truth, but to expediency and values.     

Public Opinion and Representation of Women in National Legislatures: An Analysis of Cause and Effect

Studies of female representation in national legislatures have claimed that the gender attitudes of a country's population have an effect on female representation in that country's parliament. This claim is based on the assumption that there is a unidirectional effect of public attitudes on female representation. This article tests that assumption, and hypothesises that in countries with multi-member electoral districts the effect is likely to flow in the opposite direction. When women are nominated, and to some extent elected to parliament, their presence in national politics affects public attitudes towards women in that role. Granger tests of causality in eight European countries and in the United States generally support these hypotheses. The effect flows from public attitudes to female representation in countries with single-seat districts, and in the opposite direction in countries with multi-member districts.     

DENSITY, DELINQUENCY, AND DESIGN Formal and Informal Control and the Built Environment

This study reviews the literature concerning the general impact of the physical environment on social disorganization, crime, and juvenile delinquency, with a specific focus on the relationship between household density, building density-design, and juvenile delinquency. Two perspectives on control are shown to have developed in an environmental context. One emphasizes the capacity of the built environment to impair informal social control, and the other focuses on the attraction of the same environments for agents of formal social control (the police). A path model is presented. showing that building density-design is an independent predictor of marijuana use and supporting the view that the physical environment can affect informal control. The model also shows that building density-design is a significant predictor of police presence. thus giving empirical support to the notion that the physical environment can affect formal control.     

Of Mice and Men: God and the Canadian Supreme Court

Abstract. In a recent 5‐to‐4 decision, the Supreme Court of Canada denied to Harvard University a patent on a genetically modified mouse. In their reasoning, the majority Justices, concerned obviously about the implications of granting the patent for the human case, argue that higher organisms (mammals) are not “compositions of matter” in the sense intended by the Canadian Patent Act. But if a mouse is not a composition of matter, what—indeed, what on earth—is it? As the minority Justices complain, the majority decision smacks of dubious metaphysics and theology. Appealing to a quite unlikely source, the Bible, I show that the distinction between mice and men can be defended without introducing problematic metaphysical and question‐begging theological materials. I also show, en route, that the biblical position on the special status of men and women is not inconsistent with evolutionary theory. Granting a patent on the mouse (as was done in the U.S.A.) is compatible with denying it to human organisms.     

Time and Retribution

Retributivists believe that punishment can be deserved, and that deserved punishment is intrinsically good or important. They also believe that certain crimes deserve certain quantities of punishment. On the plausible assumption that the overall amount of any given punishment is a function of its severity and duration, we might think that retributivists (qua retributivists) would be indifferent as to whether a punishment were long and light or short and sharp, provided the offender gets the overall amount of punishment he deserves. In this paper I argue against this, showing that retributivists should actually prefer shorter and more severe punishments to longer, gentler options. I show this by focusing on, and developing a series of interpretations of, the retributivist claim that not punishing the guilty is bad, focusing on the relationship between that badness and time. I then show that each interpretation leads to a preference for shorter over longer punishment.     

Public policy and sequential lineups

The claim that sequential lineups are superior to simultaneous lineups and that our knowledge of sequential lineups is sufficient to warrant their being required by law is reviewed for the validity of both strong and weak claims of sequential superiority, adherence to principles of research design, and the needs of public policy. We conclude, (1) there is little evidence to support the claim that sequential presentation of photos is responsible for lower levels of false identifications, (2) the evidence is weak that the aggregation of factors commonly labeled as the sequential lineup together produce lower levels of false identifications without additional offsetting effects, (3) much of the literature contains several confounds in research design and additional offsetting effects that question its overall utility, (4) recent research shows that the superiority of sequential lineups is restricted to specific ranges on other study design variables, and (5) the corpus of research on sequential lineups does not satisfy the needs of policy sufficiently to justify its mandated use as the required identification procedure throughout the criminal justice system.     

The health and human rights movement: progress and obstacles

There is a new maturity about the health and human rights movement as it endeavours to integrate human rights into health policies at the national and international levels. In addition to the traditional human rights techniques, such as "naming and shaming", the movement is also using new approaches such as indicators, benchmarks and impact assessments. However, it is confronted with a range of major obstacles and this article focuses on two of them: the inadequate engagement within the health and human rights movement of (i) established human rights non-governmental organisations and (ii) health professionals. This article argues that established human rights non-governmental organisations should work on health and human rights issues, such as maternal mortality, just as vigorously as they already campaign on disappearances, torture and prisoners of conscience. Also, it emphasises that health and human rights complement and reinforce each other. Nevertheless, many health professionals have never heard of the right to the highest attainable standard of health. The article argues that there is no chance of operationalising the right to health without the active engagement of many more health professionals, and it makes some preliminary observations about steps that might be taken to deepen health professionals' engagement in the health and human rights movement.