INTERVENTION VS. CO-OPERATION: LEGITIMACY OF THE EBRD CONDITIONALITY

The EBRD is a “political bank.” “Multiparty democracy, pluralism and market economies” are the conditions (termed as “conditionality”) to get financial resources. The EBRD conditionality is coercive and intrusive. In sense of its nature, it is political rather than economic. Since it is purposed to foster the transition of open market, it is legitimate. In essence, it is believed to be a form of good international co-operation rather than that of willful or arbitrary intervention.     

IN SEARCH OF A WORKABLE DIVISION OF LABOR BETWEEN NATIONAL AND INTERNATIONAL CRIMINAL JURISDICTIONS

This article deals with the question of the universal application of law from the perspective of necessary division of labor between national and international criminal jurisdictions. Applying international criminal justice fairly enhances its legitimacy, and international criminal law’s procedural aspects also must be fair. The universal application of international criminal law in multiple forums seems to be ensured by means of the proper division of labor between national and international criminal jurisdictions. Recent arguments show that this division of labor between national and international criminal jurisdictions may be properly handled in accordance with seniority criterion, which is the “big fish” versus “small fry” distinction. Lately, the international community has recognized seniority criterion as prosecutorial policy and a jurisdictional threshold, although in a different context, which is at a domestic level when that community tackles with the Somali pirates. The article argues that prosecuting both “big fish” and “small fry” is important for the universal application of international criminal law. In order to achieve this goal and to combat impunity, the feasible division of labor would be pursued with reference to the “big fish” versus “small fry” distinction.     

支持理论下民事诉讼当事人法律意识的实证研究

传统研究重视“法的供给”视角,致力于创设“良法良制”。通过转向“对法的需求”视角,本研究基于支持理论和法律意识理论,访谈了142名四类常见民事诉讼案件的当事人。本研究发现,当事人对司法的信赖分为“特定支持”和“普遍支持”两个维度。负面的诉讼经历仅会降低当事人对主审法官(法院)的评价(特定支持),尚未削弱他们对法院系统及司法制度的评价(普遍支持)。此外,当事人可以被进一步分为“门外汉”和“入门者”。前者不信赖法院的根本原因在于其法律意识与司法制度间存在巨大的冲突和矛盾;“入门者”的意识则限定于法律体系内,只在意法官的审判质量。随着司法系统的日渐完善,“入门者”对司法的信赖有望逐步提升。但“门外汉”则需要通过“知情(法)受益”这一过程先转化为“入门者”。     

40 YEARS OF THE RULE OF ADMINISTRATIVE LAW: ENHANCEMENTS,EXPERIENCE, AND EXPECTATIONS

Based on major landmark events and the rule of law development, the administrative rule-of-law construction in China, over 40 years since the initiation of the reform and opening up policy, can be divided into four stages: the “recovery” stage; the “rapid development by focusing on administrative legislation” stage; the “implementing the basic policy of law-based governance of the country and focusing on law-based administration of government” stage; and the “simultaneous advancement and integrated construction in building the rule of law in China” stage. Over the past 40 years, China’s administrative rule-of-law construction has achieved fruitful results in terms of theoretical shaping, system construction, and concept popularization. The future construction of the administrative rule of law should promptly respond to the theoretical needs put forward by state governance, administrative changes, emerging science, and technology development, and it should continue to improve the theoretical system of administrative law with Chinese characteristics; we should strengthen legislation in key areas, solve practical problems in the construction of a government under the rule of law, and promote the effect of law enforcement and system implementation. We should also focus on improving the awareness and qualities of the rule of law at all levels of leading cadres and form a good rule of law atmosphere in the entire society.     

POVERTY,INFANT MORTALITY,AND HOMICIDE RATES IN CROSS-NATIONAL PERSPECTIVE: ASSESSMENTS OF CRITERION AND CONSTRUCT VALIDITY*

This article assesses the extent to which the infant mortality rate might be treated as a “proxy” for poverty in research on cross-national variation in homicide rates. We have assembled a pooled, cross-sectional time-series data set for 16 advanced nations from the 1993–2000 period that includes standard measures of infant mortality and homicide and contains information on the following commonly used “income-based” poverty measures: a measure intended to reflect “absolute” deprivation and a measure intended to reflect “relative” deprivation. With these data, we assess the criterion validity of the infant mortality rate with reference to the two income-based poverty measures. Also, we estimate the effects of the various indicators of disadvantage on homicide rates in regression models, thereby assessing construct validity. The results reveal that the infant mortality rate is correlated more strongly with “relative poverty” than with “absolute poverty,” although much unexplained variance remains. In the regression models shown here, the measure of infant mortality and the relative poverty measure yield significant positive effects on homicide rates, whereas the absolute poverty measure does not exhibit any significant effects. The results of our analyses suggest that it would be premature to dismiss relative deprivation in cross-national research on homicide, and that disadvantage is conceptualized and measured best as a multidimensional construct.     

THE NEGLECTED SITUATION: A CROSSNATIONAL STUDY OF THE SITUATIONAL CHARACTERISTICS OF CRIME*

Although it is generally recognized in the social sciences that the “situation” is indispensable for understanding behavior, thus far criminologists have not devoted systematic attention to situational analysis. This paper contributes to the development of a situational perspective on crime by defining the concept of situation, developing four hypotheses about the situational characteristics of selected personal contact crimes, and then testing those hypotheses using victimization survey data from the United States and Venezuela. The research shows that coercive crimes are less situationally clustered than noncoercive crimes and that instrumental crimes are more situationally clustered than character crimes. Despite tremendous differences in crime rates for the two countries, substantial similarity is found in situational crime patterns. The implications of the research for criminological theory are discussed.     

Human Rights: Existential,Not Metaphysical

My paper consists of four sections. The first is concerned with the distinction and connection between fundamental and human rights. Here I shall just introduce a few conceptual notions and definitions that are more or less widely used, but that may help us to frame the issue and better focus on the most relevant question of the foundation or justification of human rights. In the second and third sections I will present what I believe to be the four fundamental normative situations that shape our understanding and use of human rights. In the second section attention will focus on what in my opinion is the most basic of these four normative situations, which I call the “existential” situation. This is intended to offer a strong foundation for human rights as “not metaphysical,” without appealing to or relying on heavy metaphysical assumptions. I will try to stick more or less to an argumentative strategy based on common sense. The third section, dealing with the three other normative situations, will to some extent be an exercise in eclecticism, trying to combine different approaches to (and schools of thought on) the question of normativity. Here eclecticism will not be trivial, or at least I hope not. In the fourth and final section I will briefly conclude with a general overview on the issue of the “existence” of normativity and human rights.     

ARREST TRAJECTORIES ACROSS A 17‐YEAR SPAN FOR YOUNG MEN: RELATION TO DUAL TAXONOMIES AND SELF‐REPORTED OFFENSE TRAJECTORIES*

The purpose of this study was to evaluate the impact of different operationalizations of offending behavior on the identified trajectories of offending and to relate findings to hypothesized dual taxonomy models. Prior research with 203 young men from the Oregon Youth Study identified six offender pathways, based on self‐report data (Wiesner and Capaldi, 2003). The current study used official records data (number of arrests) for the same sample. Semiparametric groupbased modeling indicated three distinctive arrest trajectories: high‐level chronics, low‐level chronics, and rare offenders. Both chronic arrest trajectory groups were characterized by relatively equal rates of early onset offenders, which indicates, therefore, some divergence from hypothesized dual taxonomies. Overall, this study demonstrated limited convergence of trajectory findings across official records versus selfreport measures of offending behavior.     

The identification of individuals by observational gait analysis using closed circuit television footage

This study investigated the ability of individuals with experience in gait analysis to identify people by observing features of gait recorded by closed circuit television cameras (CCTV). Seven experienced analysts each viewed five samples of footage. Each sample showed a “target walker” and five “suspect walkers.” The task of the experienced analysts was to determine which, if any, of the “suspect walkers” was the “target walker.” All of the participant “walkers” wore identical loose fitting clothing to mask anatomical and body contour features, and balaclavas to obscure facial features. The overall results showed that the experienced analysts made a correct decision in 124 of 175 cases (71%), significantly better than would have been expected to have occurred by chance (p < 0.05). A significant variation in correct decisions (p < 0.05) was shown to occur between the various angles from which the footage was recorded, footage recorded in the saggital plane showing the highest number of correct decisions. Significantly more correct decisions (p < 0.05) were also shown to occur when the footage of the “target walker” and that of the “suspect walker” were taken from the same angle. The results suggest that individuals with experience in gait analysis perform well in the comparative identification of suspects from CCTV footage, and therefore do have a role to play as expert witnesses in this field.     

DEVELOPMENT AND FRACTURE OF A DISCIPLINE: LEGACIES OF THE SCHOOL OF CRIMINOLOGY AT BERKELEY

In the early twentieth century, the University of California—Berkeley opened its doors to police professionals for instruction in “police science.” This program ultimately developed into the full‐fledged School of Criminology, whose graduates helped shape American criminology and criminal justice until well into the 1970s. Scholarship at the School of Criminology eventually fractured into three distinct traditions: “Administrative criminology” applied scientific methods in pursuit of refining law enforcement practices, “law and society” coupled legal scholarship with social scientific methods, and “radical criminology” combined Marxist critiques of the state with community activism. Those scientific traditions relied on competing epistemic premises and normative aspirations, and they drew legitimacy from different sources. Drawing on oral histories and archival data permits a neo‐institutional analysis of how each of these criminological traditions emerged, acquired stability, and subsided. The Berkeley School of Criminology provides fertile ground to examine trends in the development of criminal justice as a profession, criminology as a discipline and its place in elite universities, the uncoupling of criminology from law and society scholarship, and criminal justice policy's disenchantment with the academy. These legacies highlight how the development of modern criminology and the professionalization of American law enforcement find precedent in events that originate at Berkeley.     

RECIDIVISM AMONG PAROLED PROPERTY OFFENDERS RELEASED DURING A PERIOD OF PRISON REFORM*

Data from four successive yearly cohorts and one special early release cohort of parolees are used to explore the question of whether rapid statewide changes in the administration of criminal justice affected the patterns of recidivism among persons on parole for property offenses. Given the earlier broadly constructed research reported by Ekland–Olson et al. (1993), and their conclusion that variation in shifting policies would have different effects on different types of offenses, we decided to sharpen the focus of the research questions posed by concentrating on recidivism patterns among property offenders. Three alternative explanations—compositional effects, administrative discretion, and deterrence—are explored to interpret the differences found across cohorts While suggestive, these alternative explanations remain open to question given the limitations inherent in quasi-experimental research. Conclusions related to issues of prison construction policy suggest that more attention be paid to the “replacement factor,” whereby “vacancies” left by incarcerated offenders are rapidly filled by others. If future research supports the rapid replacement hypothesis, increased levels of incarceration will yield a larger, more experienced criminal “work force” and ironically a heightened collective potential for crime.     

THE LEVEL OF EXPLANATION PROBLEM REVISITED—THE AMERICAN SOCIETY OF CRIMINOLOGY 1997 PRESIDENTIAL ADDRESS*

This presentation revisits the “level of explanation problem” in criminology (a personal project begun more than 35 years ago). I develop the problem historically, paying tribute to those who have led the way and those who continue it. I distinguish between the situational and interactional levels of what has previously been termed the “microsocial” level of explanation. I then elaborate the interactional level and its application to the study of youth collectivities discussed.     

WHEN POLICY COMES TO TOWN: DISCOURSES AND DILEMMAS OF IMPLEMENTATION OF A STATEWIDE REENTRY POLICY IN KANSAS

In this case study, we document challenges to reform implementation posed by line staff, supervisors, and managers during a large‐scale realignment of the Kansas Department of Corrections (KDOC) in which they sought to replace a traditional approach of “risk containment” focused on surveillance and incarceration with a new model of “risk reduction” focused on service delivery and reintegration. We draw on interviews, observations, and archival research to document the staff's discursive challenges to the rollout of the new policy. More specifically, we describe how varying challenges to the reforms—“denial,” “dismissal,” and “defiance”—reflect actors’ positions within the organization, the local contexts in which they operate, and more general frames of interpretation of the long‐term orientation of the KDOC. We integrate these perspectives to contribute to the ongoing expansion of conventional models of penal change that highlight the role of actors and local social and institutional context as moderators of the gap between “law on the books” and “law in action.”     

THE SIZE OF THE “CRIMINAL POPULATION”: THE PREVALENCE AND INCIDENCE OF ADULT ARREST*

The recent emphasis in criminological theory and research on “chronic offenders” assumes that involvement in crime is concentrated among a small group of offenders rather than being widespread in the population. To address this question, this study employs a longitudinal data base on criminal histories to estimate the prevalence of arrest—defined as the proportion of a population ever arrested—and the incidence of arrest—defined as the number of arrests incurred by those ever arrested—for an age cohort of young adults between the ages of 18 and 29. The results show that being arrested is a relatively common experience for young adults: nearly one-quarter of the entire cohort and one-third of the males in the cohort were arrested at least once. One of six males and two of five black males were arrested for an index offense. The data on incidence reveal the presence of a subset of “chronic offenders” who are responsible for a disproportionate number of arrests. However, defined in terms of three or more arrests for any offense, their numbers are smaller, but the data suggest it may be difficult to distinguish “chronic offenders” from “one-time” offenders because 60% do not recidivate. These findings suggest that the current preoccupation with chronic offenders may obscure the broader social structural factors that cause very large segments of the population to come into conflict with the law.     

The Biggest “Have” of Them All: Wal‐Mart and Its Litigation Outcomes in Slip‐and‐Fall Cases

Scholars have theorized that resource‐rich litigants known as the “haves” tend to succeed disproportionately in litigation when the adverse party is a “have‐not.” The traditional theory suggests that haves are able to use their wealth to secure better attorney representation and can use their frequent experience in litigation to tip the scales of justice in their favor, particularly when faced with “one‐shotters” whose involvement in litigation is infrequent. A remaining question, however, is whether some haves fare better than other similarly situated haves. Specifically, this article posits that the litigation strategy used by the defendant may also play a role in litigation outcomes. Companies that tenaciously fight claims that, in the short term, would be cheaper to settle might discourage otherwise valid claims in the future from being filed out of fear that the litigation will be a protracted battle. This article examines Wal‐Mart Stores, Inc. (Wal‐Mart)—the largest revenue‐generating company in the United States—to explore whether it fares better than other resource‐rich defendants. Wal‐Mart in particular has a reputation against settling cases and thus is an excellent vehicle to investigate this hypothesis. Appellate cases in an eleven‐year period involving slip‐and‐fall litigation were compiled, and the results show that Wal‐Mart did win at a higher rate than other defendants. Although more research is needed to explore fully the effect of litigation strategy on win–loss rates, this sample of cases demonstrates that Wal‐Mart is a more effective and victorious litigant.     

Rules as Icons: Wittgenstein's Paradox and the Law

In this paper Section 1 distinguishes between two modes of interpreting legal rules: rehearsal and discourse, arguing that the former takes priority over the latter in law, as in many other contexts. Section 2 offers two arguments that following a legal rule in the rehearsing mode presents a riddle. The first argument develops from law, and submits that legal rules do not tell us anything, because they are tautological. The second one develops from philosophy (Wittgenstein's later works), confronting us with the paradox that incompatible courses of action may be derived from any rule. My solution presents a theory of rules as icons (Section 3 ). I use “icon” rather than “picture,” partly to avoid confusion with what is known among philosophers as “the picture theory of meaning.” Interpretation in the rehearsing mode hinges on imagination: imagining oneself in the space of reasons for action rather than reasoning oneself. In this act of imagination, we project ourselves into the rule in ways that are similar to the way we grasp the sense of paintings, music, stories, or poems. Finally (Section 4 ) I will defend the position that my view solves the puzzles in the second section, by arguing (a) that it is a better account of what Wittgenstein wrote than two competing theories (intuitionism and conventionalism), and (b) that it provides a more satisfactory account of how lawyers deal with legal rules in actual practice.     

隐私权的判定——“合理隐私期待标准”的确立与适用

隐私权存在与否的判定问题是隐私侵权责任承担的关键所在。而美国联邦最高法院在1967年Katz v.United States案中确立的"合理的隐私期待"标准,在世界多个国家的适用已被证明是比较可行的隐私权的判定方法。我国隐私权司法实践在吸收、借鉴"合理的隐私期待"标准时应明确"私人事实"、"法律规定"、"社会习俗"和"利益平衡"四种隐私期待的客观判断要素,实现判决结果的一致性,及对他人隐私利益最大程度的保护。     

A Justification of Command Responsibility

In this article, I advance a culpability-based justification for command responsibility. Command responsibility has attracted powerful, principled criticisms, particularly that its controversial “should have known” fault standard may breach the culpability principle. Scholars are right to raise such questions, as a negligence-based mode of accessory liability seems to chafe against our analytical constructs. However, I argue, in three steps, that the intuition of justice underlying the doctrine is sound. An upshot of this analysis is that the “should have known” standard in the ICC Statute, rather than being shunned, should be embraced. While Tribunal jurisprudence shied away from criminal negligence due to culpability concerns, I argue that the “should have known” standard actually maps better onto personal culpability than the rival formulations developed by the Tribunals.     

论“文学革命”爆发的社会时代原因

1917年爆发的“文学革命”是社会时代的产物。社会制度由帝制而共和的变迁,社会恶劣环境状况的刺激,外来思想文化的影响,本土文学改良的积淀和新文化运动的助产,构成了“文学革命”产生的四大主要社会时代因素。