税收刑法立法民主化

为了提高税收刑法的自觉遵行度,降低其执法成本,必然要求税收刑事立法反映人民的意志,保护人民的利益,体现人民的民主权利。在税收刑法立法过程中,应当加强税收刑法立法决策,制定民主机制建设,确保税收刑法立法形式的法典化和内容的公正化。     

Democratizing the hospital: deliberative-democratic bioethics

The increased presence of moral consultants, or bioethicists, within hospitals and clinics in the last two decades has begun to raise questions about their sources of authority and norms of practice. Under pressure from critics in the social sciences, a number of bioethicists have recently raised the ideal of democratic deliberation to defend and reconstruct their place in the medical field. This article sheds light on these developments by placing bioethics in a historical context that shows an early tension between bioethicists as whistle-blowers and bioethicists as incremental reformers of medical practice. This article also develops a conceptual framework for analysis that indicates how such tensions have grown more complicated for contemporary bioethicists because they occupy a fluid and structurally ambiguous role in which there are multiple sources of normative expectations and little guidance for meeting these expectations. The liminality of the role and the overload of expectations have made bioethics vulnerable to methodological criticisms from social scientists. This article concludes that such methodological criticisms cannot address the more systemic problems of liminality and overload. The ideal of democratic deliberation, though imperfect, does address these systemic problems because it shows bioethicists how to gain guidance and share responsibility for moral consultation.     

Democracy,Law, Compliance

Professors Schauer and McAdams both seek a more or less sweepingly general theory of why we obey the law. But we should split, not lump. There are different reasons different actors in different social settings obey different laws–not only, but not least, out of regard for democratic decision making.     

Dignity, Democracy, Civilisation

This paper contributes to international discussion about the difficulty of defining human dignity as a legal concept by locating it at the heart of (European) democracy and human rights. Focusing on emerging dignity case law in the United Kingdom, the paper explores the connections among dignity, human rights and democracy, and the uses of dignity to enhance and refine democracy. While judges are key actors in the construction of dignity, they operate within the boundaries of a particular democratic ‘civilisation’ anchored in the core prohibitions of art 2, 3 and 4 European Convention on Human Rights, combined with those of the EU Charter of Fundamental Rights (art. 2, 3, 4 and 5). This normative core, the paper argues, is to be understood in the wider time frame of democracy and dignity, which is equally important for refining and thickening human dignity’s conceptual and normative definition, as well as for reflecting on the legitimacy of its (judicial) uses.     

Authority, Equality and Democracy

Abstract.  The purpose of this essay is to argue that considerations of fairness play an essential role in the justification of democratic decision procedures. The first part argues that considerations of fairness form part of a practical authority's legitimacy, and that in the political context, those considerations of fairness entail a principle of equal distribution of political power. Subsequently, the article elaborates on the kind of equality which is required in democratic procedures, arguing that different principles of equality should apply to the deliberation and the decision stages of democracy. Finally, the article concludes with a few sketchy remarks on the possible relations between considerations of fairness and soundness of democratic procedures.     

重新审视韦伯的官僚制理论

韦伯对官僚制的研究乃是基于其对现代社会与政治的全面反思.官僚制是指一种无所不在的现代科层现象,它以自身的“理性”特征区别于其他的支配类型,影响着人们的日常生活以及精神状态.同时,韦伯将正当支配类型分为三种并非武断,而是有其理论关切的.通过对官僚制支配与超凡魅力型支配进行对比考察,韦伯从“日常/非日常”的视角揭示了它们所处理的事务在性质上的差异,由此说明了官僚制特有的局限性以及卡里斯玛型权威的必要性.此外,韦伯式的官僚制研究并不是为了生产专业知识,而是为了获得见识,并且帮助人们更好地对事物作出价值判断.     

对现代官僚制度的解读与批判

官僚一直以来都为人们所诟病,它一方面表现为无能、人浮于事和笨拙的无效率,另一方面又表现为咄咄逼人的权力。它在现代政治生活中不可或缺,却又问题百出。厘清官僚、官僚制度等概念,辨明官僚制度的成因、发展及现实运行模式,对防止官僚主义的低效无能,提高公共管理机构的运营效率,具有很重要的现实意义。     

Bureaucracy, managerial disorganization, and administrative breakdown in criminal justice agencies

This article presents a novel way to explain managerial collapse in criminal justice agencies by analyzing traditional organizational perspectives. While recognizing the advances of human relations and contingency management theories, most criminal justice agencies in the twenty-first century remain hierarchical Weberian organizations characterized by mechanistic and formalistic operations, with specialized tasks and division of labor that create a narrow range of duties. Along with Weber, Fayol, and more recently, DiIulio and Wilson have argued that managerial quality determines organizational performance. This article extends that focus by using the theoretical perspective called managerial disorganization and administrative breakdown, hypothesizing that management is responsible for well-functioning and/or dysfunctional organizations. Through a series of examples from case studies where criminal justice agencies have failed, the article concludes that agencies experiencing administrative breakdown and managerial disorganization are not implementing their basic mission and inappropriately utilizing the organizational principles of division of labor, unity of command, span of control, accountability, hierarchy of authority, and communication.     

Judicial Review,Rights, and Democracy

Law and Philosophy -     

官僚制弊病的根源性分析

现代理性的官僚制理论是由德国的社会学家马克斯·韦伯提出的，是一种理想形态的官僚制。这种官僚制依靠自身的优越性在韦伯生活的时代及其以后的一段时期确实发挥了很大的作用。但是，随着官僚制的深入应用，现实中的官僚制正在蜕化，官僚制弊病不断出现。官僚制弊病的产生根源于官僚制自身的缺陷，根除官僚制弊病，需要官僚制理性的回归。     

Hierarchy, Bureaucracy, and Ideology in French Criminal Justice: Some Empirical Observations

Using observational and interview data from my own empirical study of the investigation and prosecution of crime in France, this article examines critically the extent to which three features generally considered central to inquisitorial procedure – hierarchy, bureaucracy, and ideology – exist within the structures and procedures of the French criminal process and the constraining impact they have upon the decision-making of the procureur, the judicial officer responsible for supervising the majority of criminal investigations. A broad degree of discretion is found to exist at the local and individual level and the unavailability of resources further increases disparities in practice. Nevertheless, the conventional 'ideals' retain a continuing force and relevance for procureurs, who describe their work (both as they understand it to be and as they would wish it to be) in these terms and whose crime control orientation is shielded by redefining it in terms of 'representing the public interest'.     

Our Democracy,Our Identity,Our Anxiety

The Brexit referendum result has given focus to and amplified a series of anxieties: the successful campaign gave visibility to anxiety about immigration and loss of sovereignty, while also creating anxiety about illiberal populism. This anxiety about national identity, current and prospective (both from supporters of Brexit and its opponents), about Brexit, as caused by anxiety and cause of anxiety, has provoked a debate even about the merits of democracy, if ‘the voice and will of the people’ disrupts the traditional constitutional assumptions regarding checks and balances and becomes despotic. Reference to the tradition of anxiety about democracy, exemplified by Kierkegaard and Kant, establishes a context here for a discussion of the Brexit political debate in terms derived from Lyotard’s investigation of, on the one hand, an appeal to mythic narrative to stabilise a claim of identity, and, on the other hand, narratives of emancipation embodied in a future-oriented deliberative process, which can be analysed in terms of seven different types of language game at play. Particular reference to the image of ‘triggering’ used in the Supreme Court’s judgments in the (R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5) case in relation to Article 50 and the UK’s exit from the EU is made to illustrate the significance of figures of speech within discourse. The conclusion draws on Lyotard’s distinction between a litigation and a differend in order to better understand the politics of Brexit.     

官僚主义的治理：韦伯官僚制理论的启示

反对官僚主义是我国党和政府的一贯立场。本文通过对韦伯官僚制和我国国情的分析,指出官僚制是反对官僚主义的,“中国的问题在于官僚制不足”,提出充分发展官僚制,治理官僚主义。     

对韦伯官僚制组织效率悖论的反思

对韦伯官僚制行政模式存在的效率悖论的批判,在更大层面上是后人的一种"误读"和"苛求".新公共管理虽然在一定程度上提高了官僚制的行政效率,但并没有动摇官僚制的理论基础;韦伯的官僚制理论仍然具有十分重要的价值,而且对当今我国行政体制改革具有重大的指导作用.     

Ambient Intelligence, Criminal Liability and Democracy

In this contribution we will explore some of the implications of the vision of Ambient Intelligence (AmI) for law and legal philosophy. AmI creates an environment that monitors and anticipates human behaviour with the aim of customised adaptation of the environment to a person’s inferred preferences. Such an environment depends on distributed human and non-human intelligence that raises a host of unsettling questions around causality, subjectivity, agency and (criminal) liability. After discussing the vision of AmI we will present relevant research in the field of philosophy of technology, inspired by the post-phenomenological position taken by Don Ihde and the constructivist realism of Bruno Latour. We will posit the need to conceptualise technological normativity in comparison with legal normativity, claiming that this is necessary to develop democratic accountability for the implications of emerging technologies like AmI. Lastly we will investigate to what extent technological devices and infrastructures can and should be used to achieve compliance with the criminal law, and we will discuss some of the implications of non-human distributed intelligence for criminal liability.

Nodal Governance, Democracy, and the New 'Denizens'

We begin this paper by reviewing some recent transformations in governance. We then propose three new concepts that we believe assist us in coming to terms with these transformations and the political statuses that have emerged as part of them. These concepts are 'nodal governance', 'denizens', and 'communal space'. Following this we will explore the normative implications of nodal governance as it has taken shape to date, with an emphasis on the 'governance disparity' that is paralleling the 'wealth disparity' across the globe. In response to this disparity, we will end with an outline of a normative vision and practical programme aimed at deepening democracy in poor areas of South Africa, Argentina, and elsewhere. We will argue that the main virtue of nodal governance, namely, the emphasis on local capacity and knowledge can be retrieved, reaffirmed, and reinstitutionalized in ways that enhance the self-direction of poor communities while strengthening their 'collective capital'.