Constitutional Balance in the EU after the Euro‐Crisis

This article analyses how the European Union's response to the euro‐crisis has altered the constitutional balance upon which its stability is based. It argues that the stability and legitimacy of any political system requires the structural incorporation of individual and political self‐determination. In the context of the EU, this requirement is met through the idea of constitutional balance, with ‘substantive’, ‘institutional’ and ‘spatial’ dimensions. Analysing reforms to EU law and institutional structure in the wake of the crisis – such as the establishment of the ESM, the growing influence of the European Council and the creation of a stand‐alone Fiscal Compact – it is argued that recent reforms are likely to have a lasting impact on the ability of the EU to mediate conflicting interests in all three areas. By undermining its constitutional balance, the response to the crisis is likely to dampen the long‐term stability and legitimacy of the EU project.     

欧盟宪治:一种宪政法理学解读

<欧盟宪法条约>在2005年遭遇挫折,原因是多方面的,或许民主的因素不可忽视,当然这还涉及到人们刘欧盟性质、特征以及宪法条约文本的理解.欧盟立宪应当是一个社会互动的过程,包括民众在内的各种社会力量通过谈判达成共识,这样产生的宪法才是一部欧洲人民的宪法,而非仅仅是一部欧洲国家间的宪法,也唯有如此才可能构建新的宪政秩序.而宪政法理学为我们研究欧盟立宪问题提供了概念分析工具.     

欧盟宪治:一种亚国家主义的解读

欧盟宪法的出现,为欧洲治理提供了全新的思路,也预示着法律在区域层次的治理中能够发挥更大的作用,欧盟宪法为何能产生,这种新的法律诞生的背景是什么?这样一部旨在独立国家主体间调节的亚国家主义性质的宪法究竟能发挥多大的作用,它又将遭遇什么问题?本文试图从欧洲治理以及欧盟宪法的性质特点、目前所遭遇的困境以及其前景等方面加以分析。     

《欧盟宪法条约》对欧盟人权保护的影响

《欧盟宪法条约》的通过和生效将从根本上矫正欧盟经济、政治、军事和人权的不对称性,并使欧盟的人权保护从政治层面提升到司法层面。这一条约还从根本上弥补了欧盟的“人权赤字”,并使欧盟的人权保护制度与欧洲理事会的人权保护制度相连结,使欧盟的人权保护由点扩大到面。可以期待,随着条约的生效和施行,欧盟的人权保护将逐步处于区域性和全球性人权保护的领跑地位。     

Conditionality and Enlargement in Light of EU Constitutional Developments

Abstract: Conditionality has deeply affected European integration, particularly in what concerns EU human rights external policy on the one hand, and the enlargement process on the other hand. This paper affords a picture of the problems which conditionality has raised, not only on legal grounds, but also for the shaping and the understanding of the European identity. Moreover, the paper investigates how recent EU developments, such as the further stages of the enlargement process and the ‘Treaty establishing a European Constitution’, might change the course of, and might be affected by, conditionality.     

Constitutional and Conceptual Complexities in UK Implementation of the EU Harassment Provisions

This essay evaluates implementation in the UK in recent yearsof EU provisions on discriminatory harassment. From a technicalpoint of view, aspects of the new law are vulnerable to judicialreview challenges of various kinds. The correct interpretationof important elements is also unclear. From a principled perspective,these doctrinal complexities are liable to obscure the mostimportant underlying issues.     

我国宪政文化之发展前瞻

针对当前我国宪政文化发展中出现的严重冲突问题,正确认识当下中国宪政文化的现状并积极谋求补救途径,不仅可以帮助我们在理想与现实之间找到一个支撑点和平衡点,而且直接决定着中国宪政文化的未来发展走向.而就我国的发展前景而言,宪法程序无疑是有效弥补当前我国宪政文化之缺失的关键.因此,我们应当从完善宪法程序的角度来增强宪政文化的社会功能,谋求理想与现实间的张力平衡,重归和谐宪政秩序.     

Large‐scale Map or the A‐Z? The Place of Self‐help Services in Legal Aid

Australian legal aid agencies are increasing their reliance on self-help legal services as part of their service delivery mix. Self-help legal services seek to harness the productive capacity of consumers,enabling wider distribution of legal aid services. The move to self-help services as an alternative to traditional legal service delivery appears to have gained momentum in advance of any sound understandings of what legal consumers, and legal aid consumers in particular, are capable of. In addition to the cost benefits of providing self-help services rather than traditional legal services, these services have been promoted on the basis of their capacity to empower users to address their own legal matters. Examples of the misuse by government agencies of notions of empowerment emphasize the importance of ensuring the usefulness of self-help legal services.     

我国宪制发展中短期态势评估

我国宪法确立了国家的基础性制度架构,内容包括若干基本宪法原则、公民宪法权利的范围及其保护、国家权力的横向和纵向配置,以及宪法的保障实施。我国宪制发展面对的课题可概括为以下几种:使政治、法律体制改革跟上经济体制改革的步伐;有效保障宪法确认的公民基本权利;实现执政党与国家关系的法治化;形成独立的有权威的司法体系;建立行之有效的违宪审查制度。我国完全可以在今后5-10年内实现一些具体的宪制改革目标,其中包括:初步实现政党以及执政党与国家机关关系的法制化;省、自治区、直辖市人大代表乃至全国人大代表由选民直选产生;修改选举法,容许人大代表选举实行竞选;实现不同职业选民的平等选举权;使司法机关相对于本级地方党委和本级地方其他国家机关有较大独立性;采取立法措施弥补公民基本权利法律保障方面的缺失;消除地方因权力过度集中于执政党的领导机构而形成的党的书记破坏法制、搞个人专制的问题;在全国人大内部设立宪法监督委员会作为设立宪法法院前的过渡措施;逐步终止地方国家机关正职领导人员选举和补选环节普遍违反法律原则的做法。     

Linking Gender,Minority Group Status and Family Matters to Self‐Control Theory: A Multivariate Analysis of Key Self‐Control Concepts in a Youth‐Gang Context

The variable roles of family, gender, and race are underdeveloped in Gottfredson and Hirschi's general theory of crime, also called self control and propensity‐event theory. Using cross‐sectional data generated as part of the National Evaluation of the Gang Resistance Education and Training program, we assessed the links between the self‐reported gang involvement of 5,935 eighth‐grade public school students residing in eleven widely dispersed cities and their levels of self‐control, gender, minority group status, and family context. We found that youths with low self‐control levels reported that they were more deeply involved in gangs than youths with high self‐control, as were youths who were not closely monitored by their parents. We also found differences by gender, minority group status, and family structure. This article explores the limitations and implications of these findings for gang research, theory, and juvenile justice practice.     

Constitutional Directives: Morally‐Committed Political Constitutionalism

About 37 state constitutions around the world feature non‐justiciable thick moral commitments (‘constitutional directives’). These directives typically oblige the state to redistribute income and wealth, guarantee social minimums, or forge a religious or secular identity for the state. They have largely been ignored in a constitutional scholarship defined by its obsession with the legitimacy of judicial review and hostility to constitutionalising thick moral commitments other than basic rights. This article presents constitutional directives as obligatory telic norms, addressed primarily to the political state, which constitutionalise thick moral objectives. Their full realisation—through increasingly sophisticated mechanisms designed to ensure their political enforcement—is deferred to a future date. They are weakly contrajudicative in that these duties are not directly enforced by courts. Functionally, they help shape the discourse over a state's constitutional identity, and regulate its political and judicial organs. Properly understood, they are a key tool to realise a morally‐committed conception of political constitutionalism.     

Environmental Rights for the Future? Intergenerational Equity in the EU

Courts, commentators and legislators in Europe and around the world have now recognized that environmental degradation may constitute a violation of human rights. While the human rights model may be effective in addressing the environmental interests of existing human beings, there is a pressing need for a legal doctrine that effectively addresses the environmental rights of the future. Although the EU has actively embraced the sustainable development model and its recognition of the environmental needs of future generations, it has failed to embrace the correlative doctrine of intergenerational equity – a detailed, specific and pragmatic legal framework for global and domestic environmental governance. This article assesses EU environmental law and policy against the requirements of the doctrine of intergenerational equity and concludes that the EU's sustainable development model is inadequate from the perspective of future generations. The recommendation is made that the EU adopt intergenerational equity as a necessary corollary to sustainable development.     

Gender Equality, Citizenship, and the EU's Constitutional Future

Abstract:  While gender equality has been a matter of some concern for EU law and policy makers over the past half century, this concern has tended, at least historically, to focus upon equal treatment in employment and has not yet materialised into the delivery of a broader package of civil, political, and social rights for women. Taking the concept of EU citizenship as a framework within which to view the promotion of gender equality, this article assesses the debate on the constitutional future of the EU. This is with a view to examining the possible amelioration of women's social position through the exploitation of opportunities that the constitutionalisation of EU law presents. Looking at women's citizenship through the lens of political rights to participate in the debate on the EU's future, together with examining substantive aspects of the Constitutional Treaty for their gender equality content, the article suggests that a more comprehensive endeavour by all institutional actors to engage in gender mainstreaming is needed in order to give effect to a broader form of equality between women and men.     

Identification of Risk Factors for Self‐Injurious Behavior in Male Prisoners*

Abstract: Male prisoners with (n = 132) and without (n = 132) histories of engaging in self‐injurious behavior (SIB) were matched on conviction prefix and custody level. Conditional logistic regression revealed that a combination of risk factors from domains defined by developmental, offense history, mental health, and institutional functioning factors correctly classified 93% of the prisoners in the sample (ROC AUC = 0.89, S.E. = 0.005, p < 0.0001). Model specificity was 92.6% and sensitivity was 95.3%. False positive and false negative rates were 2.3% and 3.4%, respectively. Implications for the assessment of prisoners at risk for SIB as well as suggested future directions for SIB prisoner research are discussed.     

National Constitutional Jurisprudence in a Post‐National Europe: The ESM Ruling of the German Federal Constitutional Court and the Disavowal of Conflict

In its pending decision on the constitutionality of the European Stability Mechanism and Fiscal Compact, the German Federal Constitutional Court (FCC) has recently ruled on several applications for temporary injunctions against the transposition of these instruments. The problem of democratic self‐determination under the constraints of monetary integration has been a main concern in the ruling. Yet, the democracy‐safeguards the FCC has prescribed are parochial in not considering their impact on other EU Member States, and the Court's view of autonomy is skewed towards the issue of spending. Both concepts are at odds with the current level of transnational interdependence, which the FCC as relay to ‘integration by stealth’ has facilitated during two decades of EU‐jurisprudence. Constitutional jurisdiction should acknowledge its role in this state of affairs and fortify its effort in building judicial networks of deliberative exchange to overcome outworn parochialisms.