Equality and Constitutional Indeterminacy An Interpretative Perspective on the European Economic Constitution

It is claimed that European supranationalism represents an unprecedented mode of political association whose point is to maintain what is good about nationality and the nation state by stripping the latter of its adverse effects. In this article, this claim is submitted to a test by examining how different ways of conceiving of anti‐discrimination in the context of intra‐Community trading law give rise to two different conceptions of the European economic constitution. While the first one is married to the ideal of behavioural anti‐discrimination–that is, of affording protection against discriminatory acts by Member States–whose application would seemingly leave the nation state in its place, the other one takes a system of nation states as something that in and of itself engenders systematically discriminatory effects on international trade. According to the latter, effective anti‐discrimination presupposes overcoming such a system altogether. Both conceptions of the economic constitution are manifest in Community law, and at first glance it appears as if adherence to the first one would be consonant with supranationality as a special mode of political association. However, owing to internal predicaments arising from the application of the equality principle (understood as a principle protecting against discrimination), the difference between both conceptions cannot be upheld in practice. Since the first conception is constantly undermined by the second in the course of its application, it remains uncertain, at least in this context, whether or not the European nation state is left in place by the European Economic Constitution.     

论三个代表的宪政思想

“三个代表”思想是新世纪我党全面加强党的建设的伟大纲领。对“三个代表”思想的研究,既要 立足于政治、经济、文化的层面和角度,又要深入研究和揭示其本身所蕴涵的宪政思想。这样,才 能全面、系统、准确地了解和认识“三个代表”思想丰富的理论内涵,才能更有助于使“三个代表” 落到实处,也才有助于在我国早日实现宪政的目标。     

论通过宪法诉讼的权力制约路径

中国传统的权力制约机制因其不具有一种常规性的政治纠错功能而存在天然缺陷,宪法诉讼从表面上看虽然身处"反民主之困境",但基于二元民主理论、基本人权的价值取向及其所具有的权力动态平衡功能,是一条具有政治正当性的权力制约路径.     

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.     

宪法实施的概念与宪法施行之道

本文从全面、系统地分析、阐述宪法实施的几个基本概念出发,对宪法保障、宪法实施、宪法监督、宪法适用、违宪审查、宪法诉讼的概念作了比较明确的界定和区分。从而提出宪法私权诉讼这个独立的概念。作者认为过去我国宪法实施的制度没有建立起来,与理论上对宪法实施的片面理解有关。提出宪法私权诉讼概念有利于建立宪法诉讼制度,并对如何在中国建立宪法诉讼制度作了理论论证和设想。     

歧视与平等机会的法律透视

平等机会就是人们参与社会政治、经济等活动,根据一定的标准和原则,平等地拥有争取或获得某种资源的可能性.这种机会的获得不因某种身份状况而得到不公平的待遇.歧视就是基于某类人所具有的某种身份状况,以不合理的或不相干的理由,给他人以较差的待遇,从而使其利益受损的行为.歧视的后果就是使他人丧失争取或获得资源的平等机会.反歧视是实现平等机会的重要措施.     

"农民工"平等权的宪法保障

农民工的权利平等是一个宪法问题,其基本权利的保障必须在宪法层面上予以解决,即农民工的权利应当得到国家政府的平等关切;农民工平等权利需通过宪法诉讼与宪法救济加以实现;国家需修正分配平等的理论与政策;废除农民工的观念歧视.     

论中国农民宪法平等权的保障

农民不能真正享受宪法平等权是中国当下人权保障制度中最严峻的问题。表现为:中国的选举制度及户籍制度使农民沦为政治上的"二等公民";农民是经济利益的最大牺牲者和最小受惠者;国家教育资源配置不公导致农民及其子女只能接受差等教育;农民没有资格同市民一样享受医疗养老等社会保障。因此,应当修改选举法改革户籍制度;确定农业优先的经济战略,改善农民的民生;通过教育改革在城乡之间公平配置教育资源;建立覆盖城乡的社会保障体系。     

宪法诉讼的成因探析

古代的封建专制政体首先在西方崩溃,近代民主政治在西方国家的产生标志着人类文明进入了一个新的历史发展阶段.与这种进步相适应的是制定宪法并建立宪法诉讼制度成为一股国际性的浪潮,然而,在非西方国家,宪法的命运却与西方国家不同,可以说大多数国家的宪法并不能起到有效地长期地制约政府权力的作用……     

Equality Legislation and Reflexive Regulation: a Response to the Discrimination Law Review's Consultative Paper

The publication of the recent Consultation Document, proposinga new legislative framework for a Single Equality Bill for GreatBritain, provides the opportunity for consideration of the regulatoryapproaches that might be adopted in such legislation. The regulatoryapproaches adopted in previous anti-discrimination legislationare considered, followed by a discussion of a newer approachto regulation, which has been termed ‘reflexive regulation’.This newer form of regulation appears to form the preferredbasis for regulation in the Consultation Paper. The potentialproblems with this method of regulation are examined, in particularthe need to ensure that the pre-conditions for effective reflexiveregulation are identified and created. It is argued that theConsultation Paper has failed to address this issue, and thatseveral changes need to be made before the use of reflexiveregulation in the area of equality is likely to be successful.     

论我国秘密侦查手段的规制

秘密侦查在历史上早已有之,只是在现代成为一个比较常规的侦查方式之一。但是由于多方面的原因,我国法律对于秘密侦查几乎没有任何明确的规定,这就容易造成秘密侦查手段在使用过程中的不规范,严重的甚至可能违反法律,侵害公民权利。基于秘密侦查在侦破一些特殊类型案件中具有难以替代的作用,法律宜对其进行合理的规制,使其使用有章可循,严格恪守相关原则,做到在有效打击犯罪的同时又不无理地侵犯公民的合法权利。     

Bringing the State into Constitutional Theory: Public Authority and the Constitution

This article brings the state into constitutional theory by presenting a theory of the development of the American state from the late 19th century to the present. The focus of the theory is the ability of the national state to exercise sovereignty or public authority over civil society. The main thesis is that the Constitution did not establish a government with a level of public authority adequate to the requirements of a modem democratic state. The result was a mismatch between the demands of civil society and the competence of state institutions, causing a reorganization of the political institutions of civil society in the early 20th century and a crisis of public authority in the 1960s. The United States continues to experience the consequences of an imbalance between the state institutions established by an 18th-century constitution and 20th-century democratic politics.     

Women's Rights to Equality and Non-discrimination: Discriminatory Family Legislation in Uganda and the Role of Uganda's Constitutional Court

In 1995 Uganda adopted the Constitution of the Republic of Uganda1995 which protected a wide range of human rights includingwomen's rights to equality and freedom from discrimination.Article 33(6) of the Constitution prohibited ‘laws, customsor traditions which are against the dignity, welfare or interestof women’. However, more than ten years later legislation,customary laws and practices have continued to be in force largelydue to the lack of political will to confront issues of inequalityand discrimination in a holistic and comprehensive manner. Thisarticle examines such discriminatory laws against women andthe jurisprudence of Uganda's Constitutional Court in the areasof divorce, criminalization of adultery, succession and marriagelaws. Using a comparative approach, it observes that these lawsconflict with Uganda's Constitution as well as regional andinternational human rights treaties to which Uganda is a Stateparty. It recommends that discriminatory laws should be harmonizedwith principles of equality and non-discrimination, and advocatesfor a litigation strategy.     

The Employment Equality (Age) Regulations 2006: A Legitimisation of Age Discrimination in Employment

The Employment Equality (Age) Regulations, which implement theFramework Directive on Equal Treatment and Occupation, takeeffect in October 2006. Tackling age discrimination is seento be a means of achieving a more diverse workforce, yet intrying to achieve this objective there have been compromiseswith the principle of non-discrimination. During the consultationexercises preceding the Regulations there have been importantdifferences of approach between employers and trade unions.The Government has, mostly, adopted the approach supported byemployers. The result is a set of Regulations, which, althoughan important step forward in tackling age discrimination, havenumbers of exceptions which effectively legitimise some aspectsof age discrimination at work.     

平等是一门科学——就业歧视法律控制的比较研究

世界上有代表性的几个国家反就业歧视的理论和经验,显示了不同国家在就业平等领域的宪法、立法、行政和司法等诸多方面的努力,其经验和教训足以为解决中国目前普遍存在的形形色色的就业歧视提供有益的借鉴和启示。本文表明,平等不仅是一种崇高的理念,更是一门实实在在的学问。运用在就业领域,各国宪法和立法上的平等原则纠正了职场上五花八门、许许多多的不合理和不公正的歧视。事实上,各国法院所发展出来的鉴别歧视的方法是大同小异的。它们共同构成了一套探测和扫除就业歧视的工具库,帮助我们远离愚昧和偏见,造就一个更为理性、公平和高效的社会。     

Identification of the Edentulous Individual: An Investigation into the Accuracy of Radiographic Identifications*

Abstract: The dental identification of edentulous individuals can be challenging based on the lack of antemortem materials and unique features visible on radiographs. The constant resorption of the alveolar ridges further complicates the process. The purpose of this study was to quantify the error rate and reliability of dental identifications based on a comparison of synthesized antemortem and postmortem radiographs of edentulous individuals. Ten observers examined ten cases on two occasions and reported dichotomous and conclusion level decisions. These were analyzed using Kappa and Receiver Operator Characteristics. The mean area under the curve was 0.75 and the mean sensitivity was 0.57 and specificity was 0.83. These results suggest that dental identifications of edentulous individuals using radiographs alone have a high error rate and should be dual reported. These data add further weight to the argument that all dental prostheses should be labeled.