司法修辞方法在社会正义实现中的作用

人们关于社会正义的认识是多元的,这要求居间作出的司法判决应当经得起理性论证的检验,以防范法官选择正义立场时的任意。经得起理性检验的判决又必须借助修辞方法的使用,才能使其为判决不利方接受。在社会正义的司法实现过程中,修辞具有重要的方法论作用,但它必须在法律论证框架下使用,才符合其秉承善意而加以应用的本质。     

Beyond Rational Choice: the Hot/Cool Perspective of Criminal Decision Making

This paper proposes a general framework of criminal decision making that assumes both ‘cool’ cognition and ‘hot’ affect, i.e. feelings, to influence criminal choice. Drawing from judgment and decision making research and social psychology, the hot/cool perspective extends rational choice and deterrence theories by explaining how affect is likely to influence criminal decisions alongside cognitive considerations, such as the perceived costs and benefits of crime. It is shown how the hot/cool perspective offers a more realistic account of criminal decision making processes than existing decision models and approaches and also allows for the explanation of criminal behaviors that are difficult to explain in terms of rational choice.     

The Rationality Paradox of Nudge: Rational Tools of Government in a World of Bounded Rationality

Nudge and the wider behavioral economics approach has become increasingly dominant in contemporary political and policy discourse. While much attention has been paid to the attractions and criticisms of nudge (such as liberal paternalism), this article argues that nudge is based on a rationality paradox in that it represents an approach that despite its emphasis on bounded rationality, does not reflect on its own limits to rationality. The article considers the implications of this paradox by considering mechanisms that influence government decision making and mechanisms that lead to unintended consequences in the context of policy interventions.     

Constitutional Rights, Balancing, and Rationality

Abstract.   The article begins with an outline of the balancing construction as developed by the German Federal Constitutional court since the Lüth decision in 1958. It then takes up two objections to this approach raised by Jürgen Habermas. The first maintains that balancing is both irrational and a danger for rights, depriving them of their normative power. The second is that balancing takes one out of the realm of right and wrong, correctness and incorrectness, and justification, and, thus, out of the realm of the law. The article attempts to counter these objections by showing that there exists a rational structure of balancing that can be made explicit by a "Law of Balancing" and a "Disproportionality Rule." These rules show, first, that balancing is not a danger for rights but, on the contrary, a necessary means of lending them protection, and second, that balancing is not an alternative to argumentation but an indispensable form of rational practical discourse.     

行政决策正当性要素的个案解读——以北京市机动车“尾号限行”政策为个案的分析

当代行政决策过程涉及多元利益权衡,影响到公众利益甚至公共利益,本质上是一种政治过程。传统行政法分析框架对行政决策行为合法性的分析技术,主要限于形式合法性分析,这已远远不能解释和评价行政决策过程和结果的正当性。对行政决策的合法性分析,需要引入一种"实质合法性"分析框架,其核心是将形式合法化、理性合法化、民主合法化机制结合起来,以分析行政决策的正当性。合法性、民主性、理性构成行政决策正当化的核心要素。     

TRAITS AND STATES: INTEGRATING PERSONALITY AND AFFECT INTO A MODEL OF CRIMINAL DECISION MAKING*

We propose and test a model of criminal decision making that integrates the individual differences perspective with research and theorizing on proximal factors. The individual differences perspective is operationalized using the recent HEXACO personality structure. This structure incorporates the main personality traits, but it carries the advantage of also incorporating Self‐Control within its personality sphere, and an additional trait termed Honesty‐Humility. Furthermore, the model offers a new perspective on proximal predictors, “states,” of criminal decisions by adding affect (i.e., feelings) to the rational choice–crime equation. The proposed model is tested using scenario data from a representative sample of the Dutch population in terms of gender, age, education level, and province (N = 495). As predicted by the model, personality was both directly and indirectly related to criminal decision making. Specifically, the traits Emotionality, Self‐Control, and Honesty‐Humility were mediated by both affect and rational choice variables. Conscientiousness operated only indirectly on criminal decision making via rational choice. Together, the findings support a trait‐state model of criminal decision making.     

CAN RATIONAL CHOICE BE CONSIDERED A GENERAL THEORY OF CRIME? EVIDENCE FROM INDIVIDUAL‐LEVEL PANEL DATA

In the last few decades, rational choice theory has emerged as a bedrock theory in the fields of economics, sociology, psychology, and political science. Although rational choice theory has been available to criminologists for many years now, the field has not embraced it as other disciplines have. Moreover, rational choice scholars have fueled this skepticism of the theory's generality by modeling offender decision making that is one‐sided—large on the costs of crime (sanction threats), short on the benefits of crime. In this article, we directly assess the generality of rational choice theory by examining a fully specified model in a population that is often presumed to be less rational—adolescents from lower socioeconomic families who commit both instrumental (property) and expressive crimes (violence/drugs). By using a panel of N = 1,354 individuals, we find that offending behavior is consistent with rational responses to changes in the perceived costs and benefits of crime even after eliminating fixed unobserved heterogeneity and other time‐varying confounders, and these results are robust across different subgroups. The findings support our argument that rational choice theory is a general theory of crime.     

Genuine Auto Parts v EPA: How to Challenge Agency Findings of Fact

Abstract

This article discusses how to challenge decisions of fact made by administrative agencies, based on a recent federal appellate decision in which a decision by the Environmental Protection Agency was overturned. In Genuine Auto Parts v EPA, the court concluded that the agency’s failure to address an important element of the matter made its decision “arbitrary and capricious” and “not supported by substantial evidence.” The article discusses the relationship between “arbitrary and capricious” and “not supported by substantial evidence” as independent grounds for overturning an agency decision and concludes that both require a challenge to the decision-making process, not a challenge to the substance of the agency decision and the both require a rational process so that an agency failure to articulate a reason for its decision can be grounds for reversal.     

Rational Choice,Agency and Thoughtfully Reflective Decision Making: The Short and Long-Term Consequences of Making Good Choices

Notions of human agency are a prominent part of some but not all criminological theories. For example, McCarthy (Annu Rev Sociol 28:417–442, 2002) argues that rational choice theory, which allows persons great involvement in decision making, is more congenial with notions of human agency than others. It would appear from his argument that rational choice theory offers fertile ground to develop a clearly defined role for human agency in criminal behavior. In this paper we have taken up McCarthy’s view and argue that an important part of what is human agency consists of thoughtfully reflective decision making. We outline four elements of thoughtfully reflective decision making, and claim that it is a characteristic that varies both across persons and within persons over time. It is in short the process by which good decisions are made because by using this process one increases the likelihood that choices made will be consistent with preferences. We develop a clear operational definition of thoughtfully reflective decision making and link it to the concept of human agency. We also articulate testable hypotheses about the short-term and longer-term implications of thoughtfully reflective decision making. We conclude with a discussion of what we think lies ahead for future conceptual and empirical work.

A Prodigal Son (Through the Eyes of a Father)

Contemporary music is a category of cultural capital that is employed by symphonies and opera especially inefficiently. Considering its quantity, presumed relevance to social needs, and programming, this is surprising. The authors present a model of the programming decision for an ensemble that indicates that increasing the use of contemporary music's capital stock (i.e., increasing on-stage performances of contemporary music and thus listeners' exposure to and appreciation of it) is more difficult than in other artistic fields. Since redirecting audience attention to this cultural endowment will require retiring many resources from common use, standard recommendations for subsidies should be reassessed.     

How many samples from a drug seizure need to be analyzed?

Recently Aitken introduced an outstanding advance in the approach to decision making regarding drugs sampling. Unfortunately this approach has not, as yet, been widely implemented despite being based on a solid mathematical foundation. In this paper we advocate a Bayesian approach along the lines of that outlined by Aitken but designed to be both easily understood with less mathematical sophistication and implementable using standard EXCEL software. The emphasis is placed on encouraging the application of this methodology to routine case work by explaining the statistics involved. Minor differences exist between this approach and that of Aitken in both the modeling of the prior probability and in dealing with the discrete nature of the samples. These differences in no way detract from the sound mathematical foundation of the approach.     

Race and Juvenile Incarceration: A Propensity Score Matching Examination

Disproportionate minority contact is an important issue in contemporary juvenile justice. Few studies have directly examined the link between race and judicial decision to incarceration. Using official data from Pennsylvania (n?=?41,561), this study added to this literature in two ways. This study used propensity score matching to obtain a purer estimate of the influence race has on the decision to petition a case to juvenile court. The results indicated that prosecutors use perceptual shorthand in making this decision that hinges on race. Specifically, blacks were more 1.28 times more likely than whites to have their case petitioned to juvenile court.     

Therapeutic cloning in Australia: one small stem from man, one giant leap for mankind

In 2002 the Australian Parliament enacted legislation which prohibited both therapeutic and reproductive embryonic cloning. Just four years later, in December 2006, this same legislation was amended, reversing the prohibition on therapeutic cloning, while retaining the ban on reproductive cloning. The Prime Minister, sensing the political mood, allowed a conscience vote. This contrasted with his decision several months earlier against introducing any changes to the 2002 Act, despite 54 recommendations having been made by a Statutory Review Committee. Approval of the legislation had as much to do with the careful drafting of the provisions as with any rational, social or scientific factor. The legislation is narrow in scope, retains an absolute prohibition on reproductive cloning and contains strict regulations with heavy criminal penalties. The Act requires a review after three years. A number of questions remain. Does stem cell research demand a global rather than a local approach, by way of an international Covenant? Does the legal status of a cloned embryo need further examination? Will the embryo have a separate legal standing recognised by law? These are some of the questions which will need addressing as the law tries to keep up with science.     

极端事件的风险恐慌及对行政法制之意蕴

本文运用心理学知识,分析了公众对极端事件的风险会产生恐慌性认知;运用决策学的研究成果,阐述了包括恐慌在内的情绪在公众的决策中扮演了非常重要的角色;从机制和机理的角度剖析了极端事件的风险恐慌能够阻碍公众,甚至整个社会对风险的严重程度做出理性判断。以此为前提,阐述了在一个民主社会中,当行政机关对公众的需求进行有效的回应成为其管理的合法性基础时,其所制定的为防止极端事件不再发生的行政措施会出现非理性的情况,为确保行政措施合法性,就需要对行政法律制度进行变革:包括建立一种长效的风险治理与评估机制,以便对公众的要求加以反思、评估和过滤;通过规则来限制行政措施的过度性;通过"日落条款"来规定行政措施的适用期限;通过补偿机制来确保公正,同时增加行政措施的合理性。     

Beyond Confinement: The Regulation of Girl Offenders’ Bodies,Sexual Choices,and Behavior

Throughout transformations in juvenile justice, control over girls’ bodies, sexual behavior, and reproductive choices has remained a constant focal point among decision makers, with girls infrequently charged with serious law violations and commonly judged in terms of their moral welfare and chasteness. Using interview data with 62 court and correctional decision makers, this article examines how the contemporary juvenile justice system responds to girls’ sexual behavior and explores the policies and procedures used to restrain sexual agency and reproductive choices, both physically and cognitively. This article also investigates the penalties enforced when girls resist such controls as well as intentions toward change and reform in the system.     

The database search problem: A question of rational decision making

This paper applies probability and decision theory in the graphical interface of an influence diagram to study the formal requirements of rationality which justify the individualization of a person found through a database search. The decision-theoretic part of the analysis studies the parameters that a rational decision maker would use to individualize the selected person. The modeling part (in the form of an influence diagram) clarifies the relationships between this decision and the ingredients that make up the database search problem, i.e., the results of the database search and the different pairs of propositions describing whether an individual is at the source of the crime stain. These analyses evaluate the desirability associated with the decision of 'individualizing' (and 'not individualizing'). They point out that this decision is a function of (i) the probability that the individual in question is, in fact, at the source of the crime stain (i.e., the state of nature), and (ii) the decision maker's preferences among the possible consequences of the decision (i.e., the decision maker's loss function). We discuss the relevance and argumentative implications of these insights with respect to recent comments in specialized literature, which suggest points of view that are opposed to the results of our study.     

法治认同培育的理性逻辑

法治认同作为社会认同的一种,需要社会公众在社会交往和社会实践中形成对于法治的理性认知和情感,并把这种理性认知和情感转化为自身的行为选择和具体行动。在这一过程中,理性的社会群际关系是培育法治认同的社会心理基础,人们对法治整体化范畴的认知和社会性自我归类意识的培育是当代中国社会法治认同培育的关键所在,培育人们的法治认知、法治情感、法治思维与法治观念和理性的法治行动,是当代中国社会法治认同培育的实践展开方式。     

Collective Reason,the Rationality Gap,and Political Leadership

The article discusses the implications of the well‐known discursive dilemma. The dilemma arises whenever a reasoned decision has to be taken by a collective decision‐maker and generates persistent contradiction between what is defined as collective reason and public opinion. Following Philip Pettit, I argue that collective reason is normatively preferable and that the role of existing constitutional institutions in contemporary democracies is to collectivise reason. However, this makes the frustration of popular will a systematic by‐product of any well‐functioning political process. I argue that the only way out is if individual beliefs are subject to revision during cycles of public deliberations with the responsibility to lead this thrusted upon elected representatives.     

Law, Space, and Place: Reframing Comparative Law and Legal Anthropology

In her book Mapping Marriage Law in Spanish Gitano Communities (2006) , Susan Drummond challenges the disciplinary perspectives of comparative law and legal anthropology in her study of Gitano marriage practices. By reframing the way in which the "local" or "locale" is viewed—through an ethnographic study of Gitanos—she displaces the traditional boundaries ascribed to comparative law, with its focus on taxonomy and structure, and with legal anthropology's approach to culture. Her study not only elucidates how national and transnational law intersect, but highlights the complex interconnections between local law and the larger systems of law that attempt to regulate it. This detailed interdisciplinary depiction of the spatial and temporal dimensions of law demonstrates the importance of taking account of scale, projection, and representation that requires both comparative law and legal anthropology to rethink the nature of space and place and their relationship with law from both their macro- and microperspectives.     

Challenging Executive Dominance in European Democracy

Executive dominance in the contemporary EU is part of a wider migration of executive power towards types of decision making that eschew electoral accountability and popular democratic control. This democratic gap is fed by far‐going secrecy arrangements and practices exercised in a concerted fashion by the various executive actors at different levels of governance and resulting in the blacking out of crucial information and documents – even for parliaments. Beyond a deconstruction exercise on the nature and location of EU executive power and secretive working practices, this article focuses on the challenges facing parliaments in particular. It seeks to reconstruct a more pro‐active and networked role of parliaments – both national and European – as countervailing power. In this vision parliaments must assert themselves in a manner that is true to their role in the political system and that is not dictated by government at any level.