现代民主宪制理论的两种思想形态——以韦伯与施密特的差异为焦点

韦伯的政治著述是现代政治理论的典范,对当代世界政治和法律理论研究具有划定问题史的意义.施密特脱离韦伯政治理论的体系与前提,极端化地推演了韦伯的决断主义与克里斯玛型领袖民主等范畴,为纳粹极权体制的极端价值相对主义进行辩护,与韦伯政治著述的根本价值关切严重对立.哈贝马斯既反思了韦伯民主理论的规范性真空这一缺陷,又继承了韦伯对现代性与理性化铁笼困境的诊断,致力于批判与根除纳粹德国非理性思想传统的影响,并以商谈理论重构了自由、民主和法治的规范性基础,为填补韦伯的规范性真空作出了贡献.以哈贝马斯提出的思想史问题为切入点,阐释韦伯民主理论的总体问题意识与内在价值链条,分析施密特与韦伯理论的外在联系与根本差异,能清晰呈现关于现代民主的经典思想形态及其内在张力.     

法律社会学的定位问题:Max Weber与Hans Kelsen的比较

德国社会学家韦伯(Max Weber,1864-1920)与奥地利法学家凯尔森(Hans Kelsen,1881-1973)对"法律社会学"(Rechtssoziologie,sociology of law)的定位存在异同。他们一个从社会学家的立场,一个从法学家的立场,探讨了"法律社会学"在19世纪末叶跟着社会学(Soziologie)一起诞生的时候,究竟应该如何对这新兴的学问加以定位的问题。他们两位都是法学家出身,同样受到当时哲学思潮新康德主义(Neukantianismus)的影响,主张划分"实然"(Sein)与"应然"(Sollen),也同样对促进德语世界法律社会学的诞生有积极贡献的"自由法学派"(Freirechtle-hre)与奥地利法律社会学家艾利希(Eugen Ehrlich,1862-1922)提出了批评意见,但是他们对于"法律社会学"这门新兴的学科,却还是有不完全相同的定位。     

Social justice in the modern regulatory state: duress,necessity and the consensual model in law

This paper examines the role of the consensual model in law and argues that if substantive justice is to be the goal of law, the use of individual choice as a legal criterion for distributive and retributive purposes must be curtailed and made subject to substantive considerations. Substantive justice arguably requires that human rights to life, well-being, and the commodities essential to life and well-being, be given priority whenever a societal decision is made. If substantive justice is a collective societal responsibility, the individual cannot be justly rewarded or punished for his or her choices with respect to life, well-being and essential commodities insofar as these choices are justified or excused by standards of substantive justice. Societal conditions and institutional arrangements should be recognized as grounds for justification and excuse because they may impose limits and constraints on the choices available to an individual that are as unavoidable and compelling as those imposed by chance or by another human being.     

Habermas Contra Foucault: Law, Power and the Forgotten Subject

The purpose of the present paper is to offer a Foucauldian critique of Habermas??s theory of law and democracy. Quite famously Habermas viciously attacked Foucault??s positions on law and power in modernity. Those attacks will be taken into consideration here in order to show some deficiencies in Habermas??s own reading of modern law and democracy. My suggestion is that the formal nature of Habermas??s communicative approach fails to take into adequate consideration the question of subjectivity formation. More precisely I will demonstrate that Habermas??s own works show a troublesome ambivalence with regards to the possibility that individuals can participate as ??unencumbered selves?? to the public life of their community. As a consequence his account turns a blind eye to certain dynamics of power in our society that a Foucauldian approach seems more apt to frame and explore.     

Social Justice and Communication: Mill, Marx, and Habermas

This article concerns how one may theorize a social justice of communication. The article argues that the theory of democracy cannot neglect an analysis of communication and that, indeed, a social justice of communication can be identified in the discourse ethics of Jürgen Habermas’s “deliberative” theory of democracy. The socio-political analyses of communication in John Stuart Mill and Karl Marx are examined as precursors to Habermas’s position because they are useful for setting off the unique synthesis of the liberal and critical traditions that Habermas develops. Such a social justice of communication shows how the communicative mediation of the public sphere can ameliorate the tension between individual autonomy and the solidarity of group membership by communicatively empowering individuals under conditions of mutual respect and equal dignity.

Battered women and the state: From the failure of theory to a theory of failure

Within the context of legal reform, the Battered Wife Movement has divided feminists on the question of criminal justice as a desirable component of a feminist agenda. Thus it provides a good example of the dilemmas of developing a feminist theory about the state as the basis for informed practice. In this paper, Currie overviews the way in which the BWM has been transformed from a radical demand for the redistribution of social power into an expansion of current patriarchal institutions. As an example of the institutionalization of feminist issues, however, she rejects explanations of this transformation as simply ideological revision by the state. Rather, Currie notes that it occurs through and not against feminist discourse, meaning that we must acknowledge theory as practice if we are to develop a truly subversive and liberatory discourse within feminist scholarship.     

哈贝马斯的合法性理论中的现代性

本文对哈贝马斯的合法性理论进行了分析和检测 ,指出了其与自由民主秩序的内在关联。在深入分析了合法性证明水平的现代性蕴涵及哈耶克的知识观后认为 ,宗教对自由民主秩序的形成及合法性的证明仍有积极的功能和实质的意义 ,自发 (自由民主 )秩序的内在规则的正当性先于交往对话而存在 ,哈贝马斯提出的交往对话的形式条件无法承当合法性证明的重负     

Borders and Boundaries: Locating the Law in Film

The essay examines the emergence of law and film in the curricula of law schools in the context of Britain. It outlines the development of legal education in England and Wales and the relationship between legal education and training. It notes the broadening out of the syllabus to encompass more politicized courses taught within their socio-economic context like family law and labour law. From this shift of academic focus the politically contextual has extended to the cultural context. The relationship between law and culture both in literature and in other areas has been the end result of this relaxation of focus on professional education. Finally, the precise nature of law and film and its boundaries are discussed.     

Review essay / perfectionist moral theory,the criminal law,and the liberal state

Robert P. George, Making Men Moral: Civil Liberties and Public Morality Oxford: Clarendon Press, 1993, xvi + 241 pp.     

Drug testing and social control: Implications for state theory

A new War on Drugs became the rallying cry during the 1986 Congressional elections. One of the major components of this war was the call for mandatory drug testing of workers. We argue that drug testing has more to do with power than with genuine efforts at reducing the consumption of illicit drugs and then proceed to analyze this expansion of power by capitalists and state managers. Contrary to Block's version of state theory, the power of capitalists and state managers expanded simultaneously. We thus conclude by calling for a partial modification of his model.     

经济法原理新说之一:国家干预

对国家干预的经济法解说始终是经济法基础理论研究中的重大问题也是重大难题 ,经济法的各种学说莫不围绕国家干预展开 ,因为国家干预是确立经济法的独立地位与学科特质的基石。本文对国家干预经济运行这一经济法的基本原理进行了新的诠释 ,从国家干预的正当性、合理性和合法性等方面作出了全面剖析 ,论述了国家干预的原因、国家干预的得失及对国家干预的限制问题。     

The Event and the Subject: The (IM)Possible Rehabilitation of Carl Schmitt

The subject is the bearer of the sovereign decision, according to C. Schmitt. This decision grounds on certain situational pragmatics, yet mainly is born out of a ‘null’; as the decision forms the political normalcy that follows after, it displays its nature as an ‘event’. This subject is simultaneously a legal and a political one; it is the founder of the Nomos. This founding subject has been eclipsed in alignment with its post-modernly acclaimed ‘death’. The subject is deemed to have been inherently divided, as long as its identity steadily postpones itself, is incessantly ‘differing’, according to the deconstructionist approach; or it is considered as fundamentally ‘passive’, meaning not so much ‘weak’, but rather dethroning the Western preoccupation with the active autonomous individual; or, it is maintained but intrinsically reversed, now held either as part of a fundamental ontological order and indirectly of the nature (Agamben), or, opposite to Kantian assumptions, as primarily captured in a radical heteronomy, which constitutes it as a proper ethical subject (Levinas). Crucial is how to develop a concept taking into account the eventfulness of the constitution of the subject, without effacing the political character of such constitution by reducing it to non-political discourses, i.e., to metaphysics, morals or economics; how to conceive of Derrida’s ‘democracy to-come’ as political event, namely both as secular act and in the same time as referring to extramundane fundaments (to a ‘political theology’?); how to go beyond the linearity of the liberalist ideology by equating the political event with a messianic miracle ‘without messianism’; how to ‘salute’ democracy?