國家理性與公民理性建設

如果關心國家政體的話,不免要問政體從何而來,它的正當性、合法性何在?我們從心底裏能不能接受它,是被迫的、無奈的,承認這樣一個政體,還是心悅誠服地擁抱這樣一個政體。要回答第一個問題,就要引入兩個概念,一個是國家理性、一個是公民理性。要解釋清楚國家理性、公民理性,就需要將視野放寬,格局擴大,從中國近代轉型173年的歷史思考這一問題。伴隨著西方文藝     

Constructing a Common Language: The Function of Nuremberg in the Problematization of Postapartheid Justice

This paper analyzes the function acquired by the historical Nuremberg trial in the constitution of a specific discourse about transitional South Africa and about what should be done about the brutality of the past. This function is best described as mythical: emptied of content, Nuremberg was a blank slate on which all parties to the debate could write their conflicting representations of the situation and their respective proposed solutions. The organization of fundamentally incompatible representations of reality around unifying myths such as Nuremberg was key to the production of visible consensus on the proper evaluation of the sociopolitical situation and the basic characteristics of the right course of action, and thus the appearance of effective state administration in a reconciled nation.     

法治国家与法治社会、公民社会

法治国有多种类型:从专制的法制国到自由法治国、国家主义法治国、社会法治国.它们同社会的关系虽各有特色,但基本上是以国家为本位,以控制社会为目的.社会主义法治国家应当是自由社会法治国,它是以社会为本位,不只是要建设民主化、法治化的国家,更要形成法治社会;国家既服务于社会,又保障社会的自主、自治、自由.而法治社会则应当是自由的社会、公民社会.这种自由社会的终极目标也就是马克思所追求的"自由人的联合体".权力的多元化社会化和法的社会化多元化将消减国家法对社会的绝对统治,转为国家法与社会自治规范的共治,最终使法与权力逐渐复归于社会.     

Postapartheid Justice: Can Cosmopolitanism and Nation‐Building Be Reconciled?

South African plaintiffs are suing numerous multinational corporations under the American Alien Tort Claims Act for aiding and abetting apartheid's crimes against humanity. This article argues that Re South African Apartheid Litigation should be understood as a cosmopolitan re-membering of the nation. This interpretation runs counter to theoretical and political presumptions of an inherent antagonism between cosmopolitanism and nationhood. The apparent divide between cosmopolitanism and nation-building is bridged by the concept of victimhood. Insofar as nation-building in South Africa depends upon the restoration of victims, so too is cosmopolitanism victim-centered in its commitment to prevent harm and suffering. The apartheid litigants enact the duality of cosmopolitanism: they press for justice on the basis of cosmopolitan right, yet they do so in part because of their continued marginalization in the "new" South Africa with respect to issues of "truth" and reparation. Following on the "unfinished business" of the South African Truth and Reconciliation Commission, the apartheid litigation illustrates the intersection of cosmopolitanism with national memory and belonging.     

Migrant Workers as Citizens within the ASEAN Landscape: International Law and the Singapore Experiment

Using both legal and sociological definitions of citizenship,this paper examines how the international community, ASEAN countriesand Singapore have responded to the migrant worker question. The first part of this paper uses ASEAN examples and interrogatesthe question of migrant worker citizenship from an internationallegal or policy perspective, particularly recent efforts toconstruct a differentiated citizenship for migrant workers withindestination States based on an inclusionary principle. The second part of this paper then undertakes a close case studyof foreign domestic workers or "maids" in Singapore. I examinehow maids are depicted as non-citizens under Singapore's lawand policy, how Singaporean non-governmental organizations havesought to counter this and how the latter may be guided by internationallydeveloped concepts of differentiated citizenship and the inclusionaryprinciple.     

论公民请愿自由

请愿自由是公民所享有的一项基本政治权利 ,广泛性、强制性、公共性及参与性是其基本特征。在现代社会 ,请愿权具有重要的宪政价值 ,已经为越来越多的国家的宪法和一些国际人权公约所确认。请愿自由入宪不仅对我国当前的改革、发展与稳定有着特殊意义 ,而且还具有现实的可能性。为此 ,我国应当在宪法典中明确承认请愿权概念 ,并制定专门法律     

象征性行动与制度实施——以公民申请财政信息公开事件为例

自《政府信息公开条例》实施以来,以政府财政信息为指向的公民申请信息公开行动引起了新闻媒体和社会公众的广泛关注,产生了巨大的社会反响。这些以公民名义提起的象征性行动主要目的是检验《条例》及其规则的效力,向政府及其官员施加信息公开的压力。象征性行动表明了实现信息公开的实质性目标的障碍,体现了公民的行动策略及多元目标诉求,也具有权利表达、厘定政府责任并重构公民与政府之间关系的多重意义。在申请信息公开的过程中,公民成为《条例》的实施者,具有推动信息公开的良好激励,而且公民申请实践也推动了制度的变迁。     

Policing Identities: Cop Decision Making and the Constitution of Citizens

We examine police decision making by focusing on police stories and drawing together contemporary thought about identities and police subculture. Our inquiry suggests that police decision making is both improvisational and patterned. Cops are moral agents who tag people with identities as they project identities of their own. They do engage in raw forms of division or stereotyping, marking some as others to be feared and themselves as protectors of society, while exercising their coercive powers to punish "the bad." Due, in part, to the many ways that they identify themselves, cops also connect with people as unique individuals, including individuals whose categorical identities (e.g., drug dealers) put them at the margins of society. Rather than using their coercive powers to repress these individuals, cops infuse them with certain virtues (e.g., good family men) while cutting them breaks. As they complicate representations of themselves, cops also project complex notions of law and legality. Moral discourse seems to infuse their judgments, while they invoke law strategically as a tool to enforce their moral judgments.     

Inclusive National Governance and Trafficked Women in Australia: Otherness and Local Demand

Trafficked women are used and consumed in different ways and by different users in Australia. They are used by the traffickers and by the consumer of the destination country. They are used as prosecutorial tools by the national criminal justice agents. They are used by the national politicians to pursue border control policy objectives and to be seen as abiding by international protocols. In all these uses, the identity of the trafficked woman is formed and shaped to fit the users’ need. However, these women’s otherness and abjection is constantly maintained and reinforced. They are used as a commodity. Meanwhile, the discussion on the demand side, and the consequent responsibility of the destination country, is virtually omitted. This paper will raise the question of how the socio-legal analysis and discourse would evolve if a literal interpretation of trafficking women as a commodity was taken into account, exploring an international trade approach. The social construction of trafficked women as a commodity has been identified and criticised by academic scholars, NGOs’ and UN’s rapporteurs. By pursuing this line of approach, the destination country is forced to take more responsibility for how the woman is demanded within its territory. As a consequence of this international trade approach, the State should deliver equality and non-discrimination. Rather than being a cynical application of a trade framework to trafficked women, this approach aims to highlight the paradox of such a situation in legal terms. It is highlighted that approaching trafficked women from this legal and jurisprudential way may offer more possibilities to expand their claims against the State. Currently, in Australia, when a trafficked woman is located by the State, she would attract limited and temporal rights, her being the ‘other’ as well as an abject entity remains, notwithstanding the fact the she was imported because there is a demand within the territory.     

Against the Managerial State: Preventive Policing as Non-Legal Governance

Law and Philosophy - Since at least the 1980s, police departments in the United States have embraced a set of practices that aim, not to enable the prosecution of past criminal activity, but to...     

Face Off: The Ironic,The Irenic and the Face Between

The formation of a school, whether feminist, critical, Marxist or other involves the establishment of a doctrine – literally a teaching – and a group of students or followers – the disciples who form the discipline. No doctrine without disciples has been the history of the schools and the formative principle of academic movements. They exist in the end to convert their students, old to young, male to female, female to male, or female to female, or any other possible combination of orientations. And conversion implies orthodoxy, institutionalization and hierarchy or at least a relation to hieros and hierarchy. This paper examines these themes in terms of the specific example of feminist legal studies and a curious recent discursive event, a polemical exchange on the identity of the movement, the face of feminist legal studies, as viewed through a eulogy and a challenge to that praise. Thanks to Richard Collier, Margaret Davies, Margaret Halliwell, Elena Loizidou, Desmond Manderson, Ngaire Naffine for correspondence, for relevant discussions, and candid responses. Especial thanks to Thanos Zartaloudis for a peculiarly detailed and hospitable reading, offered at a time when it would have been much easier, both just and more appropriate for him to say very little, almost nothing. And emotive thanks as well to Linda Mills for her customary frankness and finely honed attention.     

Incomplete Citizens: Changing Images of Post-Separation Children

The image of the child as the victim of separation or divorce is well-established in legal, socio-legal and popular discourse. However, the authors argue, alongside this traditional image of the child, there is a different image of the child emerging, that of the autonomous, responsible child. This is apparent in academic discourse, policy documents and legal pronouncements. This child is included in the project of 'remoralising' the family by building the 'good' post-separation family. The 'good' child of separation or divorce is responsible for safeguarding his or her own welfare and is expected to make those choices that are assumed to best protect his or her best interests. In order to ensure that the child makes the 'right' decisions, he or she, like the adults concerned, is the target of education, information and therapeutic intervention. There is a blending of paradigms in which the ideal child is both an autonomous social actor and a vulnerable object of concern.     

自然资源国家所有权之国家所有制说

财产权的宪法史可分为人权财产权和国家财产制两个阶段。自然资源归国家所有是国家财产制的组成部分，是现代宪法创设的用以实现国家目的的手段，其基本特征是国家垄断，其基本工具价值是垄断。以权利观审视自然资源国家所有权，它具有主体的唯一性和权利的专有性、不可变更性和价值优先性等特点。宪法上的自然资源国家所有权的实质是国家权力，是管理权，而非自由财产权。     

Enemies Everywhere: Terrorism, Moral Panic, and US Civil Society

Since the attacks of September 11th, 2001, terrorism has experienced a prominence in discourse across the U.S. The representations of terrorists and terrorism by the news media and politi have contributed to the edifice of terrorism as a moral panic. This treatise examines the social effects that have or may occur due to the social construction of a moral panic of terrorism. The thematic frame is situated within Cohens stages of a moral panic. We offer an analysis of the medias depiction and coverage of acts of terrorism, and legislative, political and legal responses in the form of social and cultural changes occurring from the creation of a moral panic. In addition, we offer an analysis of the states vested interest in the social construction of this panic, leading to increased levels of fear, targeted at the general publics consciousness. This article concludes that the presentation of terrorism and terrorists by the media and politi have contributed to unnecessary levels of panic and fear, misguided public consciousness, and the development of legislation creating negative social ramifications yet be seen.