论刑法的有限性

所谓刑法的有限性,是指刑法的调控范围以及刑罚手段的运用是有限的,而不是无穷的。具体而言,刑法的有限性又可以体现在两个方面:一是刑法触角的有限性,二是刑罚发动的有限性。所谓刑法触角的有限性,又称刑法调控范围的有限制性,是指刑法调控的对象必须是在行为人意识支配下实施的严重危害社会的行为。刑罚发动的有限制性主要体现在三方面的条件上:第一,刑罚发动的首要条件就是必须有刑事案件的发生;第二,刑罚发动的实体法条件是刑法的规定性,该条件通常需要通过"罪刑法定的要求"和"犯罪构成要件的限制"两个方面来实现;第三,刑罚发动的程序性条件是指非经法定程序,不得剥夺任何人的生命与自由以及其他合法权益。     

Government Has No “Religious Agency”: James Madison's Fundamental Principle of Religious Liberty

Religious liberty has reemerged as a problem in liberal democracy. For guidance we can turn to James Madison. Unfortunately, his fundamental principle of religious liberty has been misunderstood. Madison believed that power over religious conscience always remains with the individual, which means that government never has a power to attempt to cause or prohibit religious opinions or profession and only has the power to prohibit religious practices that are “adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.” Madison's fundamental principle of religious liberty is therefore that government has no “religious agency.” In matters of religious establishment, “no agency” means that government lacks even the power to cognize religious opinions or practices. But in matters of free exercise, “no agency” means that government can accommodate citizens’ religious consciences, even if that accommodation requires cognizing their religious opinions. An important but widely overlooked example of Madison's complex but principled approach to religious liberty is his 1790 proposal for a statutory exemption from federal militia service for religious objectors.     

Jürgen Habermas on public reason and religion: do religious citizens suffer an asymmetrical cognitive burden,and should they be compensated?

In his recent writings, Jürgen Habermas asks how the liberal constitutional principle of separation between church and state, religion and politics, should be understood. The problem, he holds, is that a liberal state guarantees equal freedom for religious communities to practise their faith, while at the same time shielding the political bodies that take collectively binding decisions from religious influences. This means that religious citizens are asked to justify their political statements independently of their religious views, resulting in a burden that secular citizens do not experience. To compensate, Habermas demands from secular citizens that they open their minds to the possible truth content of religion, enter into dialog and contribute to the translation of religious reasons into generally acceptable reasons. This article focuses on Habermas’s assumption that religious citizens suffer an asymmetrical cognitive burden that should be compensated, and his claim that his approach to religion in the public sphere is less restrictive than that of John Rawls.     

Individual integrity,freedom of association and religious exemption

ABSTRACT

Of the many questions Cécile Laborde addresses in her magisterial Liberalism’s Religion, several relate to what she describes as ‘the puzzle of exemptions’. I examine some of the issues raised by her efforts to solve that puzzle: whether her ideal of moral integrity squares with the nature of religious belief; whether we should find the case for collective religious exemptions in freedom of association and the ‘coherence interests’ of associations; how much significance we should give to the ‘competence interests’ of organised religions; and by which criteria we should assess individual claims to religious exemption.     

Religion and discrimination: extending the ‘disaggregative approach’

ABSTRACT

Cécile Laborde’s disaggregation strategy, which is convincingly applied to religion, liberal neutrality, and freedom of association, should be extended to discrimination, in order to more systematically determine whether, when, and why indirect religious discrimination is unfair. Moreover, while Laborde’s distinction between the ‘Disproportionate Burden scenario’ and the ‘Majority Bias scenario’ is a powerful alternative to the discrimination-focused account of the justifiability of religious exemptions, the epistemic status of that distinction is not immediately clear. A case can be made that Disproportionate Burden and Majority Bias do not map onto different types of minority exemption claims. They are perspectives or analytical frames that may jointly and usefully be applied to most instances of such claims.     

Just work it out amongst yourselves: the implications of the private mediation of religious freedom

In its much-heralded report of 2008, the Bouchard-Taylor Commission struck by the Quebec government divided the resolution of contests involving religion-based claims into two realms: those which are solved in the courts and before human rights tribunals and therefore enter into formal determinations based on ‘reasonable accommodation’ and those disputes which are settled in private, with the guiding principle being responsabilisation dans la sphère privée' or ‘concerted adjustment’. In the report it is clear that the Commission prefers the second alternative for the resolution of disputes or disagreements about such things as prayer space, kirpans in schoolyards, serving pork at maple sugar farms, and religious needs in employment contexts. In this article I argue that encouraging the private resolution of issues around religious freedom, particularly in a social, legal and political climate in which there is fear and anxiety about the religious other, is an alternative that renders already vulnerable groups and individuals even more vulnerable. This in turn contributes to a situation in which they risk being oppressed and disadvantaged in a society which promises equality. Such a situation can create tension which could easily have been avoided if clear guidelines based on a beginning place of citizen equality were publicly and clearly stated by legal and political institutions.     

John Locke and the Limits of Religious Liberty: Marriage License Refusal,Religious Freedom Laws,Vaccine Refusal,Contraception Mandate Exemptions,and Ultrasound Requirements

Nearly two hundred fifty years into its existence, the American polity faces a conundrum over a core founding principle: religious liberty. Multiple debates have emerged over the extent and limits of religious liberty, including arguments over how far any one person’s religious liberty extends into the public sphere as well as into the private lives of other citizens. Highly influential on James Madison’s crafting of the First Amendment, John Locke’s Letter Concerning Toleration outlines a strong conception of both religious toleration and of religious liberty. In the “Letter,” Locke’s reasoning is sympathetic to the concerns and convictions of believers while remaining cognizant of the calamities to which religious differences can give rise. Further, he provides a robust explication of the mutually exclusive domains of ecclesiastical and civil authorities, now known more colloquially as the division of church and state. In the following article, I illustrate how the principles put forth by Locke offer guidance in adjudicating religious liberty claims in the cases of Kim Davis, religious freedom laws, vaccine refusal, contraception mandate exemptions, and ultrasound requirements.     

Multiculturalism and Free Speech

Anthony Lester tackles the complex and sensitive issues of multiculturalism and free speech. He explores the various meanings given to multiculturalism, integration and assimilation, as well as the relationship between the right to equality and dignity for ethnic and religious minorities and the right to freedom of expression. Placing our multicultural society in its historical context, he considers the treatment of Commonwealth immigrants in the 1960s and 1970s and discusses more recent confrontations involving racial or religious groups which have raised the right to free speech. He argues that our approach to integration and cultural diversity should promote equality and individuality but resist unreasonable demands to respect customs and practices which, for example, harm the rights of women and children, in the name of misguided multiculturalism. We must guard against political correctness that panders to the thin-skinned but remember that the right to offend does not mean a duty to do so.     

From Family Values to Religious Freedom: Conservative Discourse and the Politics of Gay Rights

On the issue of gay rights, today’s social conservatives are more likely to describe their opposition as a matter of religious freedom or personal conscience as opposed to a belief that gays and lesbians represent an existential threat to the traditional family. But how new is this contemporary argument, and how different is it from the family values politics of the previous era? This article develops what Victoria Hattam and Joseph Lowndes call “associative chains” from two important moments in anti-gay politics: Anita Bryant’s Save Our Children campaign and Kim Davis’s decision to not issue gay marriage licenses in Rowan County, KY. On one level, these moments reveal competing roles of the state in the lives of its citizens. Family values politics authorized an interventionist state for the protection of children, while religious freedom defenders promote a zone of personal conscience impervious to the state. On another level, however, these moments reveal the mutability of social conservative opposition to gay rights. Calls for protecting religious freedom preserve a heterosexism derived from antecedent family values politics. The novelty of religious freedom as a defense for homophobia obscures a persistent social conservative commitment to using the state to enshrine the heteronuclear family.     

The Anti-Axial Age

Karl Jaspers famously characterized the period from the beginning of the eighth to the end of the third century before Christ as an “Axial Age” in which intellectual freedom and creativity blossomed as never before. This article argues that it was followed, five hundred years later, by an “Anti-Axial Age”, which devised a novel formula for intellectual and political repression. Its essence was the state’s capture of the millenial narrative, which had first been developed as religious doctrine within Zoroastrianism and Christianity. Involving the two great classical empires of Western Eurasia, Persia and Rome, and then empowering the expansion of Islam, the Anti-Axial Age left an ideological legacy that continues to haunt the contemporary world.     

Making space for space

This article explores the effectiveness of appeals to ‘active citizenship’ as an answer to the ‘neoliberal’ political vocabulary of consumer choice and market freedom. It does so through a case study on recent reforms to post-compulsory education in Australia. A common response to education and social welfare policy is to expect government to accord with ideals of citizenship such as self-determination, participation and equality. However, the case study suggests that the governmental rationalities of modern mass-education systems are irreducible to these abstractions. Reference to the social rights of citizens is embedded in the rationales of social and education policy. Nevertheless, this should not be construed as the recognition or misrecognition of an absolute ideal or principle. Instead, the negotiation of social rights can be seen as the product of the mass school system's own capacity to apply common norms to a population and to use these norms in maintaining the settlements negotiated within expanding social welfare systems.     

The integrity of religious believers

ABSTRACT

According to Cécile Laborde, persons with religious commitments that are incidentally burdened by generally applicable laws should, under certain circumstances, be provided with an exemption from those laws. Laborde’s justification for this view is that religious commitments are a type of commitment with which a person must comply if she is to maintain her integrity. I argue that Laborde’s account is insufficiently demanding in terms of the other-regarding attitudes it expects people to have before they can make claims to exemptions based on their integrity. The reason it is insufficiently demanding is that Laborde’s account rests on what I call a ‘non-moralised’ view of integrity. I raise some criticisms of this view and defend the alternative, ‘moralised’ view of integrity, according to which the value of a religious person’s integrity depends on whether the practice she wishes to perform complies with certain moral constraints.     

Not Taking it on Faith: State and Religious Influences on European Court of Human Rights Judges in Freedom of Religion Cases

I analyze freedom of religion case law from the European Court of Human Rights (ECHR), arguing that the ECHR has been inconsistent and deferential to state governments. To account for this phenomenon, I consider two theoretical frameworks. First, I ask whether the religious affiliation of applicants matters when it comes to judges’ willingness to decide in their favor. Second, I consider whether ECHR judges are influenced by the preferences of the states that nominated them. Employing logistic regression analysis on an original dataset of 538 judge votes on 70 freedom of religion cases, I find that Muslim applicants are substantially less likely to receive favorable judge votes, and that judges are more likely to vote in favor of the states that nominated them. Additionally, I find that West European states are especially likely to receive favorable rulings, even when controlling for differences in state protections of religious liberty.     

Addressing the next wave of Internet regulation: Toward a workable principle for nondiscrimination

The ultimate formulation of the Federal Communications Commission's “nondiscrimination on the Internet” principle could have a significant impact on economic welfare and on innovation. In this article, we explain the economics of discrimination as it applies to the Internet, and we offer a new approach for identifying anticompetitive discrimination. Our proposal would require a complaining content provider to prove (i) the broadband service provider has discriminated in favor of some affiliated content provider that is “similarly situated” to the independent content provider; (ii) such disparate treatment is based on affiliation and not on some other consideration; (iii) the independent content provider has been unreasonably restrained in its ability to compete; and (iv) the harm it suffers as a result of the discrimination would likely redound to the harm of broadband users.     

Religious market structure and democratic performance: Clientelism

Is there a connection between government intervention in religious competition and partisan clientelism in democratic systems? Drawing on the economics of religion, we argue that alongside commonly examined population-level religious processes (religious diversity), state-level religious processes (government regulation of competition in the religious market) affect institutional performance in electoral democracies. Linking comparative indicators of religion-state relations with measures of partisan clientelism, statistical analysis suggests that uncompetitive religious markets, such as those where a dominant religion is sponsored by the state, create incentives, infrastructures and opportunities that favour clientelism. The study emphasises the importance of light-touch regulation of religion not merely as a normative principle narrowly related to religious freedom, but also as a potential remedy that can enhance the quality of political institutions.     

Civil society and the contemporary threat to religious freedom in Bangladesh

ABSTRACT

Against the international backdrop of rising religious tensions, this article explores contemporary civil society views on religious freedom in Bangladesh. It uses critical frame analysis of the corpus of civil society organizations’ (CSOs) submissions to the United Nations’ third cycle Universal Periodic Review (UPR), 2013–18. It provides a timely assessment of Bangladesh’s fulfilment of international obligations on religious freedom, and shows how the politicization of religion and the resultant conflict between ‘secularism’ and ‘extremism’ have been fuelling inter-communal tensions and religious intolerance. In particular, CSOs’ UPR submissions present powerful accounts of the principal human rights pathology affecting the country today, religious-based violence. This is accompanied by a narrative of police malpractice, judicial failings, discrimination, oppression and incitement. A further key finding is ‘situated knowledge’ or first-hand accounts of legal restrictions and government repression of civil society organizations. Consonant with the classical work of liberal theorists, we argue that unprecedented importance now attaches to safeguarding civil society criticality in order to defend religious freedom and uphold human rights in the Republic.     

Social space in the English medieval parish church

A theoretical approach to the organisation of social space is advanced with the aim to develop an understanding of the architectural space of the later medieval parish church in England, based on social practice. Refusing the general assumption of liturgical uniformity, the mass is taken as the template of religious practice most fundamental to such an understanding in the local context. Through religious practice the parish church became the locale for the constitution and reproduction of the Christian community. Social identities were necessaily constructed within that framework and as a result, it will be argued here, the church building must be seen to represent a domain of secular action within the field defined by the Christian liturgy.     

Secular spaces and religious representations: reading the headscarf debate in Turkey as citizenship politics

Although in recent years there has been a relaxing attitude in Turkey towards wearing headscarf in the public sphere, the controversy surrounding the visibility and use of the headscarf has often been read through modernity/tradition dichotomy which sees the use of headscarf by women as a threat to modernity by religious subjectivities. The principal reason for this reading is that the citizenship regime in Turkey has not been simply about defining a framework of membership to a political community but rather has been used to construct modern subjectivity. This article attempts to dislocate the headscarf controversy from this dichotomous reading by moving it into the larger framework of citizenship politics. It argues that instead of interpreting the growing visibility of the headscarf within the public sphere that pits modernity against tradition, we need instead to identify the wearing of the headscarf as a specific ‘act of citizenship’ that challenges dominant citizenship practices.