The Problems of Lustration: Prosecution of Wrongdoers by Democratic Successor Regimes

This issue went to press almost exactly four years after the death of Charles Gillespie, in whose honor I wish to dedicate the lustration symposium. A political scientist at the University of Wisconsin with a broad range of comparative interests, Charlie's major work chronicled the reemergence of democracy in Uruguay. He would doubtless have been a contributor to this issue were he still alive, and there were many times during the course of working on it when I wished I could have asked for his advice. In addition to his passion for democracy, I remember Charlie for his learning and his humor, both of which he wore with an elegant English grace. Throughout his long illness, he never lost his appreciation for the silly; his life was proof that stoicism and courage need not be cold virtues, and the world is a much poorer place in his absence.     

Living dangerously: a defense of Mortal Peril

As one of the most controversial writers of our time, just the name Richard Epstein draws immediate attention from all sectors of academia. But if the hallmark of great ideas is the criticism they engender, Professor Epstein's words and thoughts are powerful indeed. In Mortal Peril, Professor Epstein outlined a fundamental shift in thinking that he claimed needed to occur before any discussion of health care could take place. The final consensus of the validity of Professor Epstein's views may still be a matter for history to judge, but in many ways, he has already won; with the strength of his logic and convictions, he has forced other scholars to address his concerns, and in doing so, he has refocused the debate on health care. At the symposium, Professor Epstein proved his indisputable eloquence and debating skill in answering and refuting the various points made by his many critics. Now, in writing, he thoughtfully considers and analyzes the views submitted by his colleagues, and solidifies the ideas that first found their expression in Mortal Peril.     

李白诗歌风格分期论略

用“飘逸”两字概括李白的诗风,既不符合李白的生活道路,也不符合李白的创作实践。细加考究,他之自然吐露感情,在各个时期,有着显著的不同风格。概括地说,出蜀前后主要是“飘逸”的;一入长安后主要是豪放的;而入长安后主要是于豪放之中时时发为幽愤和沉郁的慨叹,及至晚年流放夜郎就完全成为悽怆和悲壮了。     

Principle,Discretion, and Symbolic Power in Rousseau's Account of Judicial Virtue

Rousseau's understanding of legislation as the expression of the general will implies a constitutional principle of legislative supremacy. In turn, this should translate to a narrow, mechanical account of adjudication, lest creative judicial interpretation subvert the primacy of legislative power. Yet in his constitutional writings, Rousseau recommends open‐textured and vague legislative codes, which he openly admits will require judicial development. Thus he apparently trusts a great deal in judicial discretion. Ostensibly, then, he overlooks the problem of how legislative indeterminacy—and correspondingly, judicial discretion—may undermine the authority of the general will. However, I argue that Rousseau aims to check judicial subversion of legislative supremacy simply by extending his broader social politics—and specifically, his peculiar concept of republican virtue—to the domain of law. His main concern is that the law should not develop as a mystifying expert practice; therefore, he necessarily rejects any understanding of judicial virtue as lying in principled discourse. Instead, he envisages that judicial power will be checked by a more generic sense of republican virtue. In turn this echoes his apprehension of social differentiation and social complexity as sources of domination and hierarchy.     

Cesare Beccaria: Utilitarian or retributivist?

Ever since Cesare Beccaria's On Crimes and Punishments first appeared in 1764, it has been common to regard its author as a theorist of criminal jurisprudence who stressed considerations of utility to the exclusion of considerations of justice. There is strong evidence for this view, and Beccaria was in many ways a forerunner of Bentham. There is, however, another side to Beccaria that has often been overlooked. In the way in which he established the right of the sovereign to punish and in his concern for the rights of the criminal (rights which no consideration of utility could override), Beccaria showed that he was much closer to the outlook commonly associated with Kant and Hegel than one would at first suspect. Though there were utilitarian aspects to his thought, Beccaria may be considered basically a retributivist who incorporated certain obvious, though by no means dominant, utilitarian themes into his work. In blending utilitarianism and retributivism, Beccaria was usually consistent, and he usually gave greater emphasis to the former.     

Eliminative Killing and the Targeting of Noncombatants Comments on Seth Lazar’s <Emphasis Type="Italic">Sparing Civilians</Emphasis>

At the heart of Seth Lazar’s arguments in support of what he calls Moral Distinction – ‘In war, with rare exceptions, killing noncombatants is worse than killing combatants’ – is his treatment of eliminative and opportunistic killing. He adopts the standard line, that eliminative killing is easier to justify than opportunistic killing. And he acknowledges that there are various circumstances in which one might be able to justify killing noncombatants on eliminative grounds. Nonetheless, he relies on the notion of a mixed kind of agency to argue that intentionally killing civilians is normally ‘more opportunistic than intentionally killing soldiers’, and is therefore normally more wrongful. I argue that his argument in favor of this claim fails. If we distinguish objectively available reasons from subjectively motivating ones, and pay attention to the limited relevance of subjectively motivating reasons, then it becomes clear that mixed agency cannot do the sort of work for just war theory that Lazar wants it to do. This failure need not impugn other parts of his defense of Moral Distinction. But it takes the heart out of his defense of it, putting a greater burden on the other parts of his argument.     

周作人战时思想散论——以《药堂语录》、《书房一角》为中心

抗战时期,国人普遍动员身体的当儿,周作人反而禁闭了身体,不给它作出象征姿态的权利.周作人表彰嘉言懿行,传述奇人轶事,恐怕是在激励民气,伸张国人的正气.这些文章或者可以视为新<世说>,表达了对于生活的敬重和理想人性的追求.周作人考察一部书的历史、一个人的生平、一种时代的陋见、一种态度的表现,表面上不出个人的兴趣,实在倒是谋求公共空间的话语权,替再一次的文化废墟营造精神的家园.     

The contract murderer: patterns, characteristics, and dynamics

A case of an independent professional contract murderer, who killed over 100 people, is reported. After eluding law enforcement for 30 years, the subject killed several associates who he believed could implicate him in various crimes. These homicides eventually led to his arrest, since the victims were individuals who could be linked to him. This hit man had a background of poverty and childhood abuse but, as an adult, had pursued a middle-class lifestyle and kept his family totally separate from his criminal career. In addition, he had a number of characteristics that helped him carry out his crimes in a highly planned, methodical, and organized manner: he had adept social judgment; personality traits of orderliness, control, and paranoid vigilance; useful defense mechanisms of rationalization and reframing; and an exceptional ability to encapsulate emotions. This case is discussed within the context of contract murder, a crime that occurs relatively frequently and is probably increasing; yet it often goes undetected, the arrest rate is low, and the offender is rarely studied.     

Human rights and the AIDS crisis: the debate over resources

In his plenary presentation of 11 July 2000 at the XIII International AIDS Conference, Kenneth Roth, the Executive Director of Human Rights Watch, the largest US-based human rights organization, reflects on whether a human-rights perspective can help us confront the AIDS crisis. More specifically, he asks the question whether human rights can help us meet the urgent challenge of securing the vast resources we need for treatment and prevention. Mr Roth believes they can. He argues that human rights are a powerful tool for meeting basic human needs, but that their contribution to the fight against AIDS is not as simple or straightforward as many often assume. In his presentation, he explains why.     

《三国演义》：政治道德与社会理想的崩溃

《三国演义》中将刘备塑造成宽厚、仁慈、爱民的贤君形象,以他为代表的蜀汉集团,坚持以民为本的政治主张,试图建立合乎政治道德、维护百姓利益的理想政权。但是,在建立蜀汉政权的过程中,刘备迫于现实利益的压力,为了政权本身,不断向现实妥协,离自己的理想越来越远,甚至将理想作为自己获得民心、夺取政权的手段。虽然刘备最终建立了属于自己的政权,但是却付出了放弃理想的代价。作品以刘备的人生历程展示了在封建时代,以民为本等合乎道德的政治主张,只能是一种无法实现的理想。     

Remembering Walter C. McCrone--scientist, mentor, leader and friend

Walter C. McCrone (1916-2002) was a special person. While books, journals and ledgers record over 400 of his technical contributions, his true legacy is his inspiration and leadership. In remembering "Doc" McCrone, we honor a man dedicated to people, to science and to education. His passion for microscopy was only exceeded by his love of science, people and teaching. While he ranked microscopy as the first step in every scientific investigation he made use of all technologies in formulating and testing hypotheses. Everyone who met Walter has a story to tell of this man's impact on his or her life; I will tell you mine.     

Growing cannabis with naphthalene in Rome

A young Italian male was investigated for possession of illicit marijuana in Rome. In his house, police found 80 cannabis plants, the plants were different sizes and located in a room with ultraviolet light, naphthalene, as a grey-white powder, was also found in his house. The man indicated that he used it for cannabis cultivation.     

什么是法学研究——民法学习的一点体会

研究生学习阶段的学习目标最为重要的是什么呢 ?我认为就是“研究” ,就是要把法律的概念、原则甚至体系拿来研讨 ,区别它的科学与谬误、正义与非正义 ,因此 ,这个阶段的学习不是当收音机 ,不只是接收他人的观点 ,而是要自主分析、积极讨论 ,提出自己的观点 ,其核心就是“研究”。     

What Should We Say We Say about Contrived ‘Self-Defense’ Defenses?

Imagine someone who deliberately provokes someone else into attacking him so that he can harm that person in defending himself against her attack and then claim “self-defense” when brought to court to defend himself for what he has done to her. Should he be allowed to use this defense, even though it’s clear that he has deliberately manipulated his attacker into attacking him precisely in order to be able to harm her with impunity (assuming he were allowed to use the defense and thus escape legal penalties)? This question is the focal point in the paper that follows. I argue first that the case described above is indeed an instance of an “actio libera in causa,” albeit arguably one at the margins of this controversial class of cases. Then, using a view about the justification of self-defense that I have defended elsewhere, I show why I believe that, while the manipulator should not be deprived of the legal right to defend his self-defensive actions in such cases by claiming they were a legitimate matter of self-defense, there is good reason to enact laws that will allow him to be prosecuted, independently of his “self-defense” defense, for manipulating his attacker as he did, thus allowing him to harm her in self-defense and then defend his actions as purely a matter of “self-defense.”     

On the Retirement of William M. Mandel

William M. Mandel began his career as an economic geographer. After wartime duty as Russian Expert for the United Press (1943-1945), he became in 1947 one of the first senior research fellows of Stanford's Hoover Institution, on the invitation of Professor Harold H. Fisher. In 1944 he published his first book, The Soviet Far East and Central Asia.     

Eugen Bleuler and forensic psychiatry

The list of Eugen Bleuler's writings shows that he grappled with forensic issues quite early, even before he became a full professor in 1898. Bleuler regularly prepared forensic criminal expert's reports himself until emeritus status was conferred on him in 1927. Analysis of his writings indicates that his position remained explicitly deterministic. In Bleuler's later work, that position was integrated into the natural philosophy vitalistic theory of mnemism, itself part of a more comprehensive theory, without any corrections to its content. Eugen Bleuler always remained a critic of criminal law, although it can be seen from later expert's reports that he for the most part accepted the existing system for the administration of justice for practical reasons. However, Bleuler always defended the idea that punishment should not be based on the moral guilt of the perpetrator but rather on the prospect of curing him.     

罗隆基人权理论及其限度

罗隆基是一个典型的自由主义知识分子。他以“人权论战”闻名于世，前期是以论政为主，后期以从政为主。他以功用作为视角，认为人权乃是做人的必要条件，并以此为基点构建其人权理论体系。罗隆基人权理论既受英美人权思想的影响，又带有中国特色，从而导致其人权理论所阐释的理想主义在当时中国现实语境下面临两难困境而难有用武之地。     

Australia: Supreme Court of Western Australia orders retrial in case of man convicted of infecting girlfriend with HIV

On 3 October 2002, the District Court convicted an HIV-positive man, Houghton, of unlawfully causing grievous bodily harm to his girlfriend for having unprotected vaginal and anal intercourse with her. Houghton had not told her of his HIV status prior to intercourse. He had been aware of his status for some years before meeting the woman, but testified at his trial that he believed that he could not transmit HIV if he did not ejaculate inside the woman. The woman became HIV-positive as a result of the sexual intercourse. The question put before the jury was twofold: whether there had been bodily injury caused by the applicant to the complainant; and whether that injury was of sufficient severity to constitute grievous bodily harm. The jury found Houghton guilty and in doing so made a finding that the transmission of HIV constitutes grievous bodily harm.     

学术与事功平衡——郭秉文高等教育思想蠡测

郭秉文是获得教育学博士学位的中国第一人.他所提出的"四个平衡"广为人知.作为郭秉文大学管理思想的一部分,他所践行的"学术与事功的平衡"堪称是其"第五个平衡"."所学者皆有所用,所用者皆本所学",学以致用、学用一致、用其所学,鼎足而三支撑起第五个平衡.有一种现象既是学术与事功平衡的题中应有之意,又是这一平衡的升华与超越,那就是引领.而引领似可说是与教学、科研、服务等量齐观的高等教育的"第四职能".     

死亡的变形记--对传统的继承和颠覆

卡夫卡的<变形记>中主人公格里高尔经历了两次死亡:在梦醒时分,他的人形肉体已经消亡,灵魂在他人的观照下寄存于甲虫体中;继而在被忘记、被抛弃的状态下彻底死亡.死亡是主人公被迫、也是主动的选择.卡夫卡在小说中表现出自我在不断与社会、与他人和解的企图中加剧对生的恐惧.格里高尔消灭自己的意愿和行动被理解为具有耶稣救赎精神,然而他的精神并未得到认同,甚至连他的尸体都未得到起码的尊重.上帝死了,英雄死了,人也死了.卡夫卡在这一层面上表现出的现代人的孤独、绝望和恐惧以及异化的状态,恐怕是无人企及的.