Towards a Contextual Definition of Rape: Consent,Coercion and Constructive Force

This paper considers ‘consent-based’ and ‘coercion-based’ models of defining rape. It argues that the ability of these models to adequately protect against violations of sexual autonomy is dependent on their engagement with the broader circumstances within which sexual choices are made. Following an analysis of both models it is argued that attempts to contextualise consent and coercion are often undermined by evaluative framings that encourage scrutiny of the complainant's actions at the expense of engagement with the broader circumstances. This is particularly problematic where rape occurs as a result of non-violent coercion and the victim does not verbally or physically demonstrate their lack of consent. The paper draws on United States military law and argues that the doctrine of constructive force, which has been used to deal with non-violent coercion in these contexts, has the potential to progressively reshape our contextual and evaluative framings in domestic contexts.     

Judicial Impartiality and Independence in Divided Societies: An Empirical Analysis of the Constitutional Court of Bosnia‐Herzegovina

The role of constitutional courts in deeply divided societies is complicated by the danger that the salient societal cleavages may influence judicial decision‐making and, consequently, undermine judicial impartiality and independence. With reference to the decisions of the Constitutional Court of Bosnia‐Herzegovina, this article investigates the influence of ethno‐national affiliation on judicial behaviour and the extent to which variation in judicial tenure amplifies or dampens that influence. Based on a statistical analysis of an original dataset of the Court's decisions, we find that the judges do in fact divide predictably along ethno‐national lines, at least in certain types of cases, and that these divisions cannot be reduced to a residual loyalty to their appointing political parties. Contrary to some theoretical expectations, however, we find that long‐term tenure does little to dampen the influence of ethno‐national affiliation on judicial behaviour. Moreover, our findings suggest that this influence may actually increase as a judge acclimates to the dynamics of a divided court. We conclude by considering how alternative arrangements for the selection and tenure of judges might help to ameliorate this problem.     

宪法解释方法的两种传统及其启示

宪法解释的重要性已经得到了普遍的认可,而在宪法解释方法的历史发展中,存在着两大分支:德国传统和美国传统,二者分别以文义解释和原旨主义为主导性解释方法。虽然两种传统有着诸多差异,但从20世纪以来却出现了趋同的倾向,以重视社会学解释方法为集中表现。在两种传统的差异与趋同中,中国宪法解释可以受到多方面的启示,包括回归宪法文本、期待个案发轫、扩展主体范围和重视社会效果等。     

The Jurisprudence of Constitutional Conflict: Constitutional Supremacy in Europe before and after the Constitutional Treaty

Abstract:  One of the core constitutional questions for national constitutional courts in the EU in the past decades has been whether to accept the claim made by the Court of Justice that EU law is the supreme law of the land, taking primacy even over conflicting national constitutional provisions. With the inclusion in the recently adopted Constitutional Treaty of a clause explicitly confirming the 'primacy of EU Law' appearances suggest that the EU is about to establish a characteristic of mature, vertically integrated, federal states such as the USA. This article argues that this view is mistaken. It develops a comprehensive jurisprudential framework for addressing constitutional conflicts, 'Constitutionalism Beyond the State' (CBC). CBS detaches the discussion of supremacy and constitutional conflict from a statist framework; provides a jurisprudential account that explains and justifies the highly differentiated, context-sensitive and dynamic set of conflict rules that national courts have in the past adopted; and provides the lacking theoretical basis for the more attractive, but undertheorised sui generis accounts of European constitutional practice that have recently gained ground in the literature. CBS provides a jurisprudentially grounded reconstructive account of why the issue of constitutional conflict is as rich and complicated in Europe as it is and why it is likely to remain so even if the Constitutional Treaty is ratified. The article then goes on to make concrete proposals addressed to national constitutional courts and the Court of Juctise respectively about how, in application of the developed approach, constitutional conflicts ought to be addressed doctrinally. It includes a proposal to read the new 'constitutional identity' clause as authorising Member States as a matter of EU Law to set aside EU Law on constitutional grounds under certain circumstances.     

The Unfreedom of the Moderns in Comparison to Their Ideals of Constitutional Democracy

The paper is a critical survey of the last ten years of research on the principles of legitimacy of constitutional democracy and their application in practice in Europe and North America. A constitutional democracy is legitimate if it meets the test of two principles: the principles of democracy or popular sovereignty and of constitutionalism or the rule of law. There are three contemporary trends which tend to conflict with the principle of democracy and thus diminish democratic freedom. There are three responses to the lack of legitimacy of these three trends. The first is to downplay the principle of democracy in order to endorse the three trends. The second is to uphold the principle of democracy, in the form of deliberative constitutional democracy, in order to criticise aspects of the three trends and to call for further democratisation. The third trend deepens this critical response by tying the test of democratic legitimacy more closely to case studies of attempts by citizens to exercise their democratic freedom.     

Practical Reasoning,Impartiality and the European Patent Office: The Legal Regulation of Biotechnology

The article argues in favour of a different conceptualisation of the role of the European Patent Office, and of the mode of reasoning that the EPO ought to deploy, so as to decide cases concerning the patentability of gene related inventions such as diagnostic tests, and questions regarding the regulation of therapeutic cloning. Richardson's model of specifying norms offers an important alternative to the models based on cost‐benefit analysis and neutral application of the appropriate norm by administrative agencies. Specificationism stresses the importance of revising the ends of policy, coming up with a new norm, the product of creative synthesis of the content of conflicting norms. The article adds to this model the idea that the revision of ends requires a strong deliberative democracy, based on the notion of the practically wise regulator, who can apply principles correctly, as these cannot be usefully applied in difficult situations by people who lack experience, insight, and character. Given the current discussion to establish a unitary EU patent, the thesis advanced here is that the patent system in Europe ought to endorse elements of deliberative democracy, enhancing the importance of civil society in the European decision making processes.     

原旨主义、活的宪法与复杂状态下的宪法解释?

宪法解释应该遵循原初意义还是回应时代需要,是原旨主义和“活的宪法”之争的焦点所在。在对宪法裁判进行批判与维护的过程中,原意解释方法和非原意解释方法都开始走向基础主义。两种解释方法执着于单一的理念,既无法证明自己比对方更为优秀,也未能对解释实践进行全面的描述。宪法解释是一个相当复杂、语境多元的过程,在不同复杂状况下,法官拥有不同程度的解释裁量权。有鉴于此,任何将宪法解释化约为单一解释哲学的做法,都是不恰当的。     

Weekend Warriors and Sun Block: Game Wardens and the Use of Force

While the field of research related to game wardens is growing, there is almost no empirical research related to game wardens and the use of force. This study adds to this virtually non-existent, but important field. The data come from 261 self-reports from the Florida Fish and Wildlife Conservation Commission Division of Law Enforcement from 2002 to 2009. The incidents were analyzed based on following factors: the time of the day, the day of the week, the season of the year, and the activity the suspect was engaged in prior to the contact. The results demonstrated the majority of use of force incidents occurred from 6:01 p.m. to midnight, during Fridays, Saturdays, Sundays or national holidays, during the summer, and when the suspect was participating in a non-hunting or fishing activity. While this research addresses a missing component of the literature, the generalizeability of the findings are limited. Still, additional research is needed in this area before more firm conclusions can be reached.     

作为宪政实践机制的合宪性审查

合宪性审查作为一种宪政实践机制,蕴涵了宪法的“高级法”观念、自然正义、宪法保障、分权与权力理性、宪政民主、人权保障等思想基础,集中展示它的宪政性与现代意义。为此,应当认真对待宪政生活中的合宪性,当前我国的关键问题不在于应否创制,而在于如何创制合宪性审查机制。