论程序主义的合法性理论——以罗尔斯、哈贝马斯相关理论为例

在“上帝死了”之后,人类社会进入到一个韦伯所言之诸神与诸魔的时期,这一时期的基本特点是一个人所认定的“神”在他人眼中很可能是“魔”。这使得对法之合法性基础的证成变得比较困难——至少,早期那种独断论式的合法性理论已经不能满足这个价值多元时代的需求。在这一背景下,以罗尔斯、哈贝马斯等为首的一批学者创设了一种程序论理论,对多元时期的法之合法性问题予以了强有力的回应。     

对泛道德化批判之批判

泛道德化批判是将一切现象道德化后再用理想化、双重化的标准进行道德评判的一种批判方式。对主体和现象的过度抽象是泛道德化批判的逻辑前提,过度抽象带来的非现实性与虚假性紧张导致个人悲观失望的消极情绪。泛道德化批判的出现有其必然性与合理性。对泛道德化批判的扬弃既要肯定它的热情批判态度,又要摒弃抽象的思维方式,并自觉将科学的批判方式与热情的批判态度相结合。     

Principle,Proceduralism, and Precaution in a Community of Rights

Abstract. This paper presents a sketch of the way in which an ideal‐typical community of rights, Gewirthia, responds to the so‐called “internal problem of authority.” Notwithstanding the deep moral consensus in Gewirthia, where citizens are fully committed to the Principle of Generic Consistency (requiring that agents respect one another’s freedom and basic well‐being), Gewirthians make no claim to “know all the answers.” In consequence, public governance in Gewirthia needs a strategy for dealing with the many kinds of disputes—disputes that relate to matters of both principle and practice—that require authoritative settlement. In this context, having outlined the nature of (and justification for) the procedural strategy that Gewirthia adopts in order to resolve such disputes, we discuss the range of regulatory questions that are potentially moot in Gewirthia, and focus on three hard cases in which the State might argue for a precautionary licence—namely, where there is a dispute about indirect and speculative harm to rights‐holders, about harm to arguable rights‐holders, and about the possible corrosion of the conditions that are essential for the sustainability of a moral community.     

A Working Class Critique of Criminological Theory

The absence of a thoroughly developed, working class critique of criminological theory has resulted in bias in the creation of knowledge regarding crime and deviance. Much as feminist writings illuminated the unique problems related to gender, and works by those discussing racial and ethnic minorities highlighted the special concerns related to race and ethnicity, a working class perspective can expose the particular issues having to do with class. A brief discussion will be presented dealing with the portrayal of working class people in the media, and the complicity of academia in allowing working class stereotypes to persist. A sketch of a working class perspective will then be developed, and it will be used to critique fourteen of the major criminological theories today in terms of their relative sensitivities and considerations of the class factor in crime and justice issues. The final section places each of the fourteen theories on a continuum from those that do not consider the working class experience at all to those that give the working class experience full consideration. This revised version was published online in July 2006 with corrections to the Cover Date.     

行为无价值论批判

引进德日的将结果无价值论和行为无价值论折中的“二元论”来改造我国的社会危害性概念,已经成为一种趋势。但是,德日的“二元论”,无论从其自身的内在逻辑、适用标准还是从理论根据来看,都存在严重缺陷,难以为我国的社会危害性理论的重构提供一条新的路径。     

The Legacy of the Maastricht-Urteil and the Pluralist Movement

Abstract:  The Maastricht-Urteil of the German Constitutional Court of October 1993 has left a deep mark on EU law. Although some may consider it as part of legal history, the decision has never been overruled, and the ideas behind it are very much alive. This article tries to examine the legacy of that decision. From a practical point of view, the article focuses on the following issues: the current situation in Germany; the influence on other constitutional or supreme courts and on constitutional reforms in some Member States; the influence on the European Court of Justice and on the Treaty establishing a Constitution for Europe. Regarding theory, three sections of the article discuss a number of widespread ' idées reçues ' contained in the Maastricht-Urteil on notions such as the state, constituent power ( pouvoir constituant ), and democracy. The next section presents the movement of legal pluralism as an attempt to come to terms with the Maastricht-Urteil and its legacy. It criticises the radical versions of legal pluralism in view of the damage they may cause to essential dimensions of the rule of law. The final section reflects on the real motives behind the Maastricht-Urteil and its legacy, and on possible future developments.     

A Kantian Critique of Kant's Theory of Punishment

In contrast to the traditional view of Kant as apure retributivist, the recent interpretations ofKant's theory of punishment (for instance Byrd's)propose a mixed theory of retributivism and generalprevention. Although both elements are literallyright, I try to show the shortcomings of each. I thenargue that Kant's theory of punishment is notconsistent with his own concept of law. Thus I proposeanother justification for punishment: specialdeterrence and rehabilitation. Kant's critique ofutilitarianism does not affect this alternative, whichmoreover has textual support in Kant and is fullyconsistent with his concept of law.     

20世纪90年代以来的合并控制理论探析

为了适应 20世纪 90年代以来并购活动的日益增长,规制者运用“革新市场”和“单方效果”来支持积极的反托拉斯执法活动。“革新市场”理论通过对一个合并对相关市场上的研究和发展的影响来评估技术领先企业之间的合并。“单方效果”理论根据合并企业独自对相关市场上价格产生影响的能力来评估一个合并。     

Reasonable Interpretation: A Radical Legal Realist Critique

International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique - The notion of reasonable interpretation of legal texts, as opposed to the absurd or unacceptable...     

Oubliez Critique

Critique has been shaped according to legal protocols and techniques. From Kant to Hegel and Marx, critics have tended to adopt one of the roles available in court procedure. This internal connection is most evident in American CLS of a psychoanalytical nature. If critique recognises itself in the juridical, psychoanalysis asks us to believe in the law. British critical legal scholars have followed a more political and aesthetic strategy, which today may ask us to abandon traditional critique for acts of critical resistance.     

A Critique of Gottfredson and Hirschi's General Theory of Crime

Gottfredson and Hirschi's (1990) general theory of crime is appealing because of its versatility and simplicity: in the general theory, criminal behavior is a function of low or absent individual self-control. However, the theory does not adequately account for distinctive features of male violence committed against women nor does it adequately consider the implications for women of taking primary responsibility for caregiving and socialization, those aspects of parenting that are most critical to the development of self-control. Gottfredson and Hirschi's inattention to gendered power differences and inequalities results in a theory of crime that does not challenge social relations and institutions, creates a false gender-neutrality when gender specificity is appropriate, and implicitly blames woman-dominated child-care for contemporary criminal behavior.     

私法社会化的反思与批判——社会法学的视角

社会法不属于特别私法,也非私法社会化的表现形态,而为第三法域;早期以《德国民法典》为代表的大陆法系私法,比较完整地保留了传统私法要素,社会化表现微弱;加世纪以来,私法以"外接"与"内设"两种形态回应法的社会化要求;当代私法与私法学面临困境,私法将保持传统,不应、不能彻底社会化,社会法为实现向纵深发展的法律社会化的主要工具。~①