重大过失理论的构建

传统大陆民法理论关于重大过失的解说既无法提供明确的认定方法,又内在地欠缺解释力。重大过失应当是一种有认识的过失,但同时须在客观上制造了巨大的危险。它是一种偏主观的、行为人很大程度上可避免的过错,是一种具有较强道德可责难性的过错。它是介于故意与普通过失之间、更接近于故意的一种独立过错类型。有认识的认定应坚持知道与有理由知道两级分类,并有效运用司法推论和立法推定。危险巨大性的认定主要涉及损害可能性与损害程度两方面判断。重大过失的法律效果原则上与故意相同,但有例外。     

The Reasonableness in Recklessness

Criminal Law and Philosophy - Recklessness involves unreasonable/unjustified risk-taking. The argument here is that recklessness in the criminal law is best understood as nevertheless containing an...     

Special Issue on Recklessness and Negligence

Criminal Law and Philosophy - This paper introduces the Special Issue on Recklessness and Negligence. It highlights the main issues and controversies that surround these concepts and then briefly...     

The Denominator Blindness Effect: Accident Frequencies and the Misjudgment of Recklessness

People seriously misjudge accident risks because they routinelyneglect relevant information about exposure. Such risk judgmentsaffect both personal and public policy decisions (e.g., choiceof a transport mode) but also play a vital role in legal determinations,such as assessments of recklessness. Experimental evidence fora sample of 422 jury-eligible adults indicates that people incorporateinformation on the number of accidents, which is the numeratorof the risk frequency calculation. However, they appear blindto information on exposure, such as the scale of a firm's operations,which is the risk frequency denominator. Hence, the actual observedaccident frequency of accidents/exposure is not influential.     

Caldwell Recklessness is Dead, Long Live Mens Rea's Fecklessness

The House of Lords has recently reiterated its preference for a purely subjective doctrine of mens rea by overruling the Caldwell test of recklessness. It is argued that while the subjective basis of mens rea is essential to ensure that it is the accused's culpability that is being judged, courts must be prepared to accept that there is a residual objective element that is part of mens rea and it is that which determines whether the accused is morally blameworthy. Unless this is formally accepted, mens rea will never be restored to its proper normative role; that of determining whether the 'mens was rea'. ¹     

无隐私即无自由——现代情景下的个人隐私保护

隐私权是现代文明的奢侈品.隐私权从无到有,隐私权话语的背后到底蕴藏着现代人的生存困境.科学技术、大众传媒、公共权力、消费主义文化使现代社会的个人隐私濒于死亡.隐私权旨在合理划分公共领域与私人生活,保障私生活自由.隐私权的实质是私生活的自由权.     

Without Peers

Abstract

This writing will, in two parts, trace the development of Anglo-American law in regard to women and jury service from the early Anglo-Norman jury to the present American system. In this long history, women were largely excluded from the public world of the legal system. As criminal defendants, they did not face a jury of their peers. The first part, contained in this edition, examines the limited participation of women in the legal system in medieval and early modern England, colonial America, and the new American nation ending with their entry into the public world and the victory of women's suffrage in the United States. Within this setting, this first section traces the evolution of trial by jury. The second part, to follow, will examine the twentieth century legal, and political, struggle for women's full participation in the American jury system.     

Risk-Taking,Recklessness and HIV Transmission: Accommodating the Reality of Sexual Transmission of HIV Within a Justifiable Approach to Criminal Liability

This paper examines the issue of justifiability of risk-taking with regard to the transmission of HIV. It considers a number of factors, such as seriousness of risk, likelihood of risk occurring, social utility of conduct involved, ability to use precautions and victim awareness of the risk and willingness to accept it, which combined help to determine whether the taking of a risk is reasonable or not. It argues that by considering the issue of justifiability in this way, it is possible to accommodate the wider social, psychological and public health realities of HIV. It further argues that a criminal law which fails to take account of such considerations is not only overly broad in its application but ultimately risks punishing those who are not in fact deserving of punishment. I would like to thank the two anonymous reviewers for their comments on an earlier draft.     

Rape Without Consent

This article is a defence of a differentiated offence of rape.A differentiated offence is an offence which can be completedin a number of different ways that cannot be captured in a simpledefinition. It is argued that such an offence would meet severalconcerns that have been expressed in the feminist literatureabout the law of rape. It would assist certainty, it would reducethe extent to which the offence focuses on the conduct of thecomplainant, it would allow the law to express that violenceis central to the offence of rape where violence is present,but it would also allow convictions of rape where there is noviolence. The argument is developed through critical engagementwith the law of rape as set out in the Sexual Offences Act 2003.The Sexual Offences Act, it is argued, fails adequately to meetthe concerns outlined above.     

Imperatives Without Imperator

Schmitt’s theologisation of sovereignty has been subjected, 50 years later, to a ‘quarter turn’ by Foucault’s move from issues of domination to issues of government. After a further 30 years, radicalising Foucault, Agamben’s archaeology of economy adds another ‘quarter turn’: the structure that emerges once the old European conjugality of facticity and validity, of praxis and being, emptied of all bonds, links, and loops, gives way to the bare opposition ‘bipolarity’. The new constellation provides the old legal-theoretical (kelsenian) problem of rules unsuspended from a ruler who would authorise them, with a new, unexpected, political content and with a change of epistemic paradigm.     

Anti-Discrimination Rights Without Equality

Anti-discrimination rights are nearly always thought to be justified or explained by equality, although the precise nature of this relationship is rarely considered. In this article I consider the two most plausible relationships, both of which are commonly at least implicitly asserted: that anti-discrimination rights are deontic equal treatment norms, and that anti-discrimination rights are instrumentally aimed at achieving telic equality. I try to show that, as a conceptual matter, anti-discrimination rights are not equal treatment norms: they do not require that all people (perhaps in a certain category) are treated the same. They allow for different treatment, but they prohibit different treatment only on some grounds. Although the suggestion that anti-discrimination rights are instrumentally aimed at telic equality (in some dimension) is conceptually plausible (like all instrumental relationships), it is most unlikely that anti-discrimination rights can be justified on this ground.