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.     

教育机会均等概念的跨文化分析

"教育机会均等"是学校教育制度正式形成之后出现的一个重要概念,各国教育学者对其概念内涵的分析均受到其所在国家社会文化背景的影响.英国学者强调无论是贵族子弟还是平民子弟,都应该享受同样优质的教育,而且政府还应该对平民子弟给予补偿教育,以达到教育结果的机会均等.美国学者强调无论儿童出身于何种民族及背景,都应该接受同样质量的教育,尽可能地减少教育机会的不均等.中国学者认为以中国现有的经济社会文化发展水平,应尽量减少儿童在入学机会方面的地区差异和阶层差异.     

平等权原则与宽容——以平等和自由的关系为向度

平等和自由之间是存在张力的,且经常表现为一种矛盾关系。国家强制平等往往通过一定的制度来实现,而这种制度如果不能在自由与平等之间保持某种适度平衡,就会导致来自国家或社会的歧视与缺乏宽容。就平等权原则在世界各国宪法上的规定及其实践而言,虽然不同国家的宪政制度和法治文化传统不同,但都体现了宽容的内在性要求,一如美国的"平等保护原则"和德国的"法律上的平等与禁止恣意原则"。鉴于我国人民代表大会制度下的"立法归类"可能造成的歧视和不宽容,将"法律面前人人平等"单纯理解为平等权或法律适用上的平等原则,都是不甚妥当的,它仍然有进一步诠释的余地。在更为根本的宪法原则层面,宽容理念要求确立社会法治国原则,以对传统法治国原则进行修正,以进一步调和自由与平等之间的内在紧张关系。     

Reconciling MacCormick: Constitutional Pluralism and the Unity of Practical Reason

This article begins by assessing the ways in which the life and work of Neil MacCormick exemplified a dual commitment to the local and particular—especially through his advocacy of nationalism—and to the international and the universal. It then concentrates on one of the key tensions in his work which reflected that duality, namely the tension between his longstanding endorsement of constitutional pluralism—and so of the separate integrity of different “local” constitutional orders—and his belief in some kind of unity, and so community, residing in the moral and rational properties of all law. The article continues by considering a number of ways in which this tension may be resolved. It concludes, with particular reference to MacCormick's late work on ethics, that the answer may be found through the idea of a general unity of practical reason which undergirds the various special orders of practical reason by which particular legal systems are distinguished.     

The EU's Climate Leadership: Reconciling Ambition and Reality

This article argues that while the EU aspires to and is capable of structural, directional and instrumental leadership in the global climate regime, it thus far has not fully utilized this potential. Partly this is because the EU's shortcomings with respect to implementation have reduced the credibility of its leadership, partly because the complex internal negotiations tend to divert attention away from consideration of the impacts of its negotiation position on other countries. Nonetheless, the EU is moving the regime-building process forward. It is recommended that if the EU wishes to continue acting as a leader, it then needs to combine the three types of leadership with a short, medium and long-term strategy.     

On Reconciling Irreconcilables: Neo-liberal Globalisation and Human Rights

This article examines the tensions between the presently dominantform of globalisation, which will be referred to as neo-liberalglobalisation, and the protection of human rights. The argumentdeveloped and defended here, in essence, is that one cannotbe committed to the protection of fundamental human rights andat the same time acquiescent in the dominant model of globalisation.Consequently, it is argued that advocates for human rights,be they grassroots campaigners, academics or members of theglobal human rights officialdom, must take a strong stance againstprevailing orthodoxies in order to genuinely advance and entrencha culture of human rights protection. A large element of theargument presented here will be that conventional discourseon human rights and globalisation has misunderstood the natureof globalisation. In contrast to the standard narrative in thisfield, I will posit my own understanding of globalisation, thatis neo-liberal globalisation, and then argue that this modelis inimical, both in theory and practice, to the protectionof human rights. Having done this, I will then go on to arguethat all human rights advocates are faced with a choice (notan easy choice, but a necessary one) between acquiescence ina process which is inherently inimical to the protection ofhuman rights, or utilising human rights to challenge and overcomethe dominant model of globalisation.     

Reconciling psychopathy and low self-control

Although both reflect a self-centered, antisocial personality, psychopathy and low self-control have seldom been examined together. This study created scales reflecting both common and unique elements of both constructs, investigated their factor structure, and explained variance in delinquency. Four alternative hypotheses were tested: that low self-control and psychopathy constitute a single construct, that they constitute primary and secondary psychopathy or interpersonal and intrapersonal traits, or that they constitute Antisociality—the tendency to perform antisocial acts—and (low) Self-Direction—the tendency to act in one's long-term beneft. Models containing Antisociality and Self-Direction fit better than alternatives and accounted for substantial variance in offending.     

Reconciling Trade and Culture: A Global Law Perspective

This article provides an overview of the most essential issues in the trade and culture discourse from a global law perspective. It looks into the intensified disconnect between trade and culture and exposes its flaws and the considerable drawbacks that it brings with it. It is argued that these drawbacks become especially pronounced in the digital media environment, which has strongly affected both the conditions of trade with cultural products and services and cultural diversity in local and global contexts. In this modified setting, there could have been a number of feasible “trade and culture” solutions—i.e., regulatory designs that while enhancing trade liberalization are also conducive to cultural policy. Yet, the realization of any of these options becomes chimerical as the line between trade and culture matters is drawn in a clear and resolute manner.     

Reconciling Quinlan and Saikewicz: decision making for the terminally ill incompetent

One of the most perplexing problems in the medicolegal field concerns the criteria on which decisions not to treat terminally ill incompetent patients should be made. These decisions traditionally have been made by physicians in hospitals--sometimes with the assistance of the patient's family--on the basis of their perceptions of the patient's "best interests." Recently, two state supreme courts have ruled on this question. The New Jersey Supreme Court, in the Quinlan case, developed a medical prognosis criterion, and permitted the patient's guardian, family, and physicians to apply it with the concurrence of a hospital "ethics committee." The Massachusetts Supreme Judicial Court, in the Saikewicz case, adopted, on different facts, the test of "substituted judgment" to be applied by a probate court after an adjudicatory hearing. The two cases have been interpreted by many in the medical profession as representing conflicting viewpoints--one supportive of traditional medical decision making and the other distrustful of it. It is the thesis of this Article that Quinlan and Saikewicz are in fundamental agreement and can be reconciled by the next state supreme court that rules on this question. Both courts enunciate a constitutional right to refuse life-sustaining treatment, based on the right to privacy. They agree that incompetents should be afforded the opportunity to exercise this right, and that certain state interests can overcome it. They agree also that physicians should be permitted to make medical judgments, and that societal judgments belong in the courts. The differences in how the opinions are perceived result from the interplay of several factors: the differences in the facts of the cases; the inarticulate use of the term "ethics committee" by the Quinlan court; the literal interpretation of the role of such a committee by the Saikewicz court; a desire for 100 percent immunity on the part of physicians and hospital administrators in Massachusetts; and advice from their counsel on how such immunity can be guaranteed. It is the author's hope that this Article will help to dispel much of the misinformation surrounding these two cases, and to refocus the debate on how decisions should be made for the terminally ill incompetent patient on the real issues regarding criteria and the decision-making process that remain to be resolved.     

Dignity and Equality

Inequality remains one of the most challenging issues on theglobal human rights agenda. It is widely recognised that a formalapproach to the assessment of inequality has failed to eliminateentrenched structural social and economic inequality and thata different approach is required in order to tackle the rootsof inequality and achieve substantive equality. In seeking toimplement an approach to equality that addresses the historyof apartheid and the social and economic inequality endemicin South African society, the South African Constitutional Courthas rejected formal equality, and is in the process of developinga substantive interpretation of equality based on the protectionof human dignity. Critics of this approach have argued thatthe concept of human dignity is too indeterminate to providea stable foundation for equality law and that it promotes anexcessively individualistic conception of equality. Focussingon key developments in defining human dignity in German andSouth African constitutional law, this article argues that theconcept of dignity is rooted in a rich tradition which is capableof underpinning an approach to equality which avoids excessiveindividualism and fully recognises the interplay between individualand community needs. A detailed exploration of the equalityjurisprudence of the South African Constitutional Court revealshow the dignity-based approach has been developed in order toprovide a framework within which the actual experience of victimsof discrimination can be explored. It is concluded that thisapproach has the potential to engage with the realities of thewide range of divisions within South African society and theireffects in order to address not only the legacy of apartheidbut also to contribute to the creation of a society in whichevery person is valued equally.     

Equality Law and the Protected Characteristics

UK anti‐discrimination law is founded on a grounds‐based system of protected characteristics. For this system to function as a legitimate and workable legal framework the characteristics must satisfy three conditions: they must have some definitional and categorical stability, they must broadly reflect people's understanding of social reality and lived experiences and they must align with the most significant axes of discrimination in society. This article argues that all three conditions are becoming increasingly difficult to satisfy as a result of dramatic shifts in social configurations of identity and the ongoing failure to include socio‐economic status as a legally protected characteristic. The future of the legislative framework may depend on the willingness of courts and policy‐makers to adopt a more context‐based approach to the protected characteristics. This would require them to interrogate claims of individual instances of discrimination in the context of wider, but also more particular substantive group disadvantage.     

Equality before the Law and Precedent

The paper explores the nature of the principle of equality before the law, understood as the formal justice criterion that like cases must be treated alike, as a rationale of the rule or system of precedent. The first part discusses and rejects Kelsen's thesis on the conceptual insignificance of that principle in the sphere of the application of the law, identified uniquely with a logical criterion related to generality of rules and simple legality. The second part argues for the ethical relevance of equality before the law as a reason for a legal system to have a rule of defeasibly binding precedent.     

个人独特性与法律普遍性之调适

现代法律通过立法上的抽象化、典型化、身份化、角色化等技术确立了普遍性。但是，个人的独特性与法律的普遍性之间存在的冲突也昭然若揭：强调行为而忽略人的存在；注重平等而无视人的差异；突出客观而不考虑主观问题。这些都使得法律规则与真实的个人之间无法协调。为解决这一问题，法律应当保障个人私域空间的合理存在，保障个性自由；确定法律上的特殊弱者，为少数人提供特殊的法律保护；法律运作层面上，通过个别化的方式，根据人的独特性设定不同的法律规则和作出不同的法律裁决。     

Equality and Sharing: Views of Household Across the Iron Curtain

Before they reunified, the two Germanies provided a natural experiment in whether law could rectify what many have seen as injustice between men and women in the household. East German legislation mandated that equal hours of housework be contributed by husband and wife, while West Germany allowed the couple to reach any arrangement they chose. This paper explores the predicted and actual consequence of the two regimes for labor force participation, divorce, and equality within marriages.