Argumentative Arbitrariness and Legal Discourse

To make sense of the legal decisions courts offer, oftentimes we cannot rely on a strict judicial sense. Sometimes our explanations require us to engage in juridic-political speculation. This I call argumentative arbitrariness. This concept can serve us well in helping us to make sense of matters of justice as well as in developing critiques of legal order.     

Exploring the “Lost and Found” of Justice Theory and Research

Scientific interest in the nature of how people think about justice and fairness began approximately 70 years ago with Stouffer’s classic study on the American soldier. Since then there have been numerous theoretical frameworks and thousands of research studies conducted on what people perceive as fair and the consequences of making a fairness judgment. The goal of this article is to dig through the “lost and found” box of justice research in an attempt to re-examine where we have been, issues and ideas we may have forgotten, and to gain insight on directions we may want to go in the future. The key rediscovery of this review is that perspective matters. Specifically, how people interpret fairness depends critically on whether they are viewing a situation in terms of their material, social, or moral needs and goals. The implications of adopting a contingent theory of how people reason about fairness are discussed.

相对积极主义刑事司法观的提倡

新的十六字方针是法律体系建成之后的必然选项,其实质是追求法律的正当性与司法的公正性,提倡一种相对积极主义的司法理念,强调社会安全与司法人权保障的平衡。司法积极主义是对简单遵循文义的专属主义反思化的结果,并非意味着基于秩序安宁而造法。司法克制主义和积极主义,都有相同的出发点。二者的根本分歧在于如何理解解释法律、寻找法律和创造法律的关系。绝对的积极主义因存在明显的违背教义学和罪刑关系的痕迹而应当引以为戒,相对积极主义因包含着法律的道德价值从而更能促进公正性的实现。当前我国的司法犯罪化理论如果被不加甄别地践行,或者不进行细致化的推演,可能具有绝对积极主义色彩而走向公正的反面。因为刑法包含着规范属性和道德属性,这意味着人道精神与法定理念互为补充,意味着公正和人道成为刑事司法的目标。相对积极主义的特征是注重方法论的合刑性以及合宪性要求。     

论作为第三种规范的法律正义

将法、正义、法律正义视为同一事物的意念 ,是一个需待澄清的误解性意念。法、正义、法律正义不仅有重合会通的一面 ,更有各自的界限。法是一种常见的制度规范 ,正义是一种高层次伦理规范 ,而法律正义则是融合了法和正义两种要素的第三种规范。法律正义也是一种正义 ,是正义中的基本正义、有形正义和正义中的强者。法律正义也是一种法律规范 ,是高层次法律规范 ,是区别于恶法劣法的良规良法 ,是理想和现实相结合的法律规范。明辨三者的界限 ,方能洞知法有良恶优劣的分别 ,完整地认知法的面貌 ,倾力于建设以良法美制为基础的现代法治国家     

Group Differences in Fairness Perceptions and Decision Making in Voting Rights Cases

Participants recruited from one Historically Black University (HBU) and two predominantly White higher-education institutions evaluated and decided simulated voting rights case summaries in which the plaintiff was either a racially-defined (African American) or a nonracially-defined (farmers) minority group. Contrary to social identity and social justice findings of an in-group bias, the present study showed greater support at all institutions for the voting rights of the African Americans than for the rural farmers, and the greatest support for both minority groups was found at the HBU. Perceived evidence strength was a better predictor of decisions than perceived unfairness, and both of these predictor variables completely mediated the effects of institution-type and involvement of a racially-defined group on decisions.     

Predicting Customer Service Employees’ Job Satisfaction and Turnover Intentions: The Roles of Customer Interactional Injustice and Interdependent Self-Construal

Research has primarily examined supervisors and coworkers as sources of unfair interpersonal treatment (i.e., interactional injustice) in the workplace. Unfair treatment, however, can also originate with customers. Using a cross-sectional, correlational research design (N = 172), we examined the associations among customer injustice, employee job satisfaction, and turnover intentions. Drawing on relational theories of fairness, we also examined whether employees who more strongly define themselves through their interpersonal relationships (i.e., those with stronger interdependent self-construals) would exhibit stronger injustice-attitudes associations. Results showed that, overall, greater injustice was associated with lower job satisfaction but not greater turnover intentions. Moreover, as expected, the strength of employees’ interdependent self-construals moderated the injustice-attitudes relations: Relationship-oriented employees showed significant associations between injustice and both job satisfaction and turnover intentions, whereas those with weaker relationship orientations did not. Implications and future research directions are discussed.

Third Way Regulation? Community Legal Service Partnerships

This article examines recent changes in the civil legal aid scheme in England and Wales (now called the Community Legal Service) and the creation of Community Legal Service Partnerships in particular. The article explores three main interests: it illustrates how third way thinking has been applied to the reform of the legal aid scheme under the Access to Justice Act 1999; it explores how partnership fits within theories of public regulation; and it illustrates how professionalism is being re-shaped by a combination of new public management, contractualism and partnership. It points to important limitations in new public law theories of extended accountability and democratised governance as manifested in partnerships.     

The Role of Societal Benefits and Fairness Concerns Among Decision Makers and Decision Recipients

Four experiments examined the role of costs and benefits versus procedural and distributive justice for procedural fairness and procedural evaluations among decision makers and decision recipients. Experiments 1 and 2 examined the responses of actual judges in a 2 (high versus low benefit) x 2 (search procedure conducted respectfully versus disrespectfully) randomized factorial. In both studies judges evaluated procedures differently than is typical among samples of decision recipients: outcome concerns strongly influenced both procedural evaluations and procedural fairness while procedural concerns such as voice and respect were minimally influential. Whereas fairness concerns continued to be important among these decision makers, outcome fairness was more influential than procedural fairness. Studies 3 and 4 varied role (authority versus subordinate), procedural respect, and societal benefits. Both experiments supported our predictions that procedural criteria would dominate the procedural evaluations of subordinates whereas outcome concerns such as societal benefits would dominate the procedural evaluations of authorities.     

刑事诉讼制度改革中的“底限正义”——对中国刑事诉讼制度改革理路的质评

我国刑事诉讼法修改在即,但是关于刑事诉讼制度改革我们始终缺乏一种方法论上的指引。“底限正义”理论是一种指导刑事诉讼制度改革的有效方法和策略,它一方面认可人类社会存在着最低限度的正义要求,从而为以法律移植为主要内容的我国刑事诉讼制度改革提供了理论依据;另一方面又承认正义的相对性和多元性,承认法律制度移植的可选择性,从而为我国当前刑事诉讼制度改革提供了微观操作步骤。同时,“底限正义”理论对我国刑事诉讼法学研究的深入拓展也有着重要的借鉴意义。     

Social Norms and the Feeling of Justice about Unequal Family Practices

After briefly retracing the origins of the present day unbalanced division of family work, this paper article summarizes results from three studies conducted with married adults and unmarried young adults from northern Portugal. The data support the idea that (a) unequal family practices do not change because traditional practices are social norms that orientate individuals’ behavior; (b) individuals do not comply passively to these social norms but consider that the normative practices are fair; (c) normative family practices are considered to be fair because women, as well as men, seem to gain benefits from traditional family organization. The social consequences for women of the maintenance of normative family practices are discussed.

论行政侵权赔偿责任因果关系

行政赔偿因果关系是法律关系的一个连接点,行政赔偿因果关系的认定模式应构建在对因果关系适当分类的基础上。"公平正义"应作为行政赔偿因果关系认定的基本准则,行政赔偿因果关系应重新定义。     

论《人民法院统一证据规定》及大陆法和普通法的融合

中国属于大陆法系，在法官职权、法院地位和对待先例的态度上都与大陆法法系的基本特征一致，而这些特征又是大陆法系同英美法系的区分点，在当今大陆法和英美法互相融合的潮流下，我国的《人民法院统一证据规定》（建议稿）正是融合的标志，这部《统一规定》在证据规定、民事和刑事诉讼程序中都与《美国联邦证据规则》存在很多共同之处，与德国、日本等国家仅仅就审判程序的改革相比，《人民法院同一证据规定》在证据规定方面迈出了更大的一步。本文作者认为，在这个融合的过程中。相同的规定在不同的环境下将演化出另样的甚至是出人意料的结果，但是《统一规定》对“公正和效率”这一价值目标的实现是毫无置疑的。此外，《统一规定》在试用阶段的考察和改良无疑将增强融合后的可行性。     

Heir, Celebrity, Martyr, Monster: Legal and Political Legitimacy in Shakespeare and Beyond

The seventeenth century placed Western political thought on a path increasingly concerned with ascertaining the legitimacy of a determinate individual, parliamentary or popular sovereign. As early as Shakespeare, however, a parallel literary tradition serves not to systematise, but to problematise the discourses used to assert the legitimacy with which control over law and government is exercised. This article examines discourses of legal and political legitimacy spawned in early modernity. It is argued that basic notions of ‘right’, ‘duty’, ‘justice’ and ‘power’ (corresponding, in their more vivid manifestations, to categories of ‘heir’, ‘celebrity’, ‘martyr’ and ‘monster’) combine in discrete, but always encumbered ways, to generate a variety of legitimating discourses. Whilst transcendentalist versions of those discourses begin to wane, their secular analogues acquire steadily greater force. In addition to the Shakespearean histories, works of John Milton, Pierre Corneille, Jean Racine, Friedrich Schiller and Richard Wagner are examined, along with some more contemporary or ironic renderings.

超越“东西方”法律文化的司法——法制现代性中的中国司法

社会转型与经济转轨使得人与人之间、不同群体之间的利益关系纠缠交错,利益的结构性冲突也日渐频繁。为此,当下中国的法官在处理纠纷时,就必须在理顺关系、权衡利益、评估得失、摆平事件上下工夫,进而及时地为社会提供一种既缓和并协调好了利益的紧张关系、又衡平了价值冲突的法律产品。然而,这一法律产品的生产,实质上是中国法官充分利用了“东西方”两种文化之中的法律资源,又超越两种司法模式而采取的一种更为实用的司法策略;与此同时,这一司法运作模式的背后,恰恰又反映出了“调解”与“审判”这两种截然不同的纠纷处理方式在当下中国实已无区分开来的必要。     

Gault's Promise Revisited: The Search For Due Process

Fifty years ago, due process was introduced into the juvenile courts, but today children still do not have the guiding hand of counsel at every stage of the proceedings. In assessing the pre‐Gault world, Chief Justice Fortas observed that “[a] child receives the worst of both worlds:…he gets neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children.” 1 Fortas opined that “Then as now good will and compassion were admirably prevalent. But recent studies have entered with surprising unanimity, sharp dissent to the vitality of this gentle conception. They suggest that the appearance as well as the actuality of fairness‐ impartiality and orderliness‐ in short the essentials of due process may be a more therapeutic attitude so far as the juvenile is concerned.” 2 The prescience of his observation has found resonance and reinforcement with the 2013 publication of Reforming Juvenile Justice: A Developmental Approach 3 which was commissioned by the Office of Juvenile Justice Delinquency and Prevention (OJJDP). Reforming Juvenile Justice's emphasis on encouraging not only the perception but the actuality of fairness in all domains 4 connects directly to the essence of Gault's message. “Treating youth fairly and ensuring that they perceive that have been treated fairly and with dignity contribute to positive outcomes in the normal processes of social learning, moral development, and legal socialization adolescence.” 5 The research also demonstrates that public health oriented alternatives to traditional court processing promote social connection and positive youth development. 6 The OJJDP report provides a road map for promoting positive youth development and social engagement by demonstrating that supporting such policies improves public safety outcomes by reducing recidivism. In exploring whether Gault's promise of due process has been realized or is still aspirational, this article suggests that our inquiry requires us to think contextually by considering how children and families are treated in and out of the courtroom. This entails consideration of educational, child welfare and mental health services, as well as the scope of legal entitlements. Equity and fundamental fairness, euphemisms for due process, are what will truly effectuate Gault's promise and should be the benchmark for all courts and systems that engage with children.     

Moral Convictions Often Override Concerns About Procedural Fairness: A Reply to Napier and Tyler

Napier and Tyler (this issue) question whether moral convictions about outcomes really override the influence of procedural fairness (PF) on fairness judgments and decision acceptance. The empirical answer to this question is “yes.” When people have strong moral convictions about outcomes, perceptions of outcome fairness and decision acceptance are primarily shaped by whether the morally “correct” outcomes are achieved. Pre-decision perceptions of PF have surprisingly little or no effect on these judgments. That said, pre-outcome perceptions of PF sometimes predict post-outcome perceptions of PF, even when people have morally vested outcome preferences. We provide further details supporting the validity and superiority of our data analytic approach and argue that our original conclusions were justified.

Prison Recruitment as a Policy Tool of Local Economic Development: A Critical Evaluation

Like the sports franchises and foreign auto plants that preceded them, state and local governments are touting prisons as the latest means of economic miracle‐making, often for small towns and communities that are economically depressed. The building of prisons is supposedly tied to the development of a just, fair, and rational criminal justice policy in a civil democratic society. Prison building has positive and negative social and political consequences for these communities. This critical essay explores some of these consequences in light of the literature on prison siting, the experiences of communities and prisoners, and relevant statistical data in the public domain. It also offers an alternative framework for evaluating prison recruitment as a strategy for local economic development.     

论刑法教义学的立法批判功能

关于“刑法教义学是否具有对刑法立法进行批判的功能”这一问题,当前刑法学界存在肯定说和否定说。其中,否定说建立在这一前提上:作为刑法教义学基本逻辑起点的刑法规范是合理正当的刑法规范。然而,该前提因不符合立法事实,从而导致否定说不具有合理性。刑法教义学作为刑法的规范意义的发现方法,对刑法立法进行的批判主要表现在模糊性刑法规范、滞后性刑法规范和“漏洞”型刑法规范的意义发现过程中,即根据社会生活事实对三者的通常规范意义进行扬弃,从而实现其规范意义的明确化、发展性和填补。但是,刑法教义学的立法批判功能也是有场域限制的,即刑法教义学的司法面向性和实践导向性决定了刑法教义学批判不能否定现行有效的刑法规定,同时,刑法规范语言的文义边界框定了面向司法的刑法教义学批判的基本限度。