2001年劳动法学和社会保障法学研究的回顾与展望

2001年劳动法学和社会保障法学的研究无论在深度上还是在广度上都有所发展,呈现出以下几个特点:一是在基础理论的研究和构建上,由于这门学科相对于其他法学学科而言的新兴性,学者们不断地为其寻找定位,突破既有的法律观念和概念,表现出极大的理论勇气和创新精神;二是对具体制度的研究日益深入和细微;三是紧密结合社会实际,运用研究的理论去解决一系列实际问题.     

Forensic science and the law

Forensic Science today makes an important contribution to the operation of the Criminal Justice System providing evidence which could help decide the guilt of a suspect. Forensic Science is able to do so because it has developed to operate within the reality determined by the Criminal Justice System. Changes that are occurring today seem to upset the relationship between Forensic Sciences and the Criminal Justice System by the creation of communication problems. Examples of these problems exist in the changes occurring in the concept of death made necessary by organ transplants. These changes have shifted the focus from the quantity of life to the quality of life and make it impossible for the Forensic Scientist to answer honestly the questions that might be put him. The need for reforms in the law in view of social changes has been recognized and in many countries attempts at such changes are afoot. With these changes a new reality is being defined. Forensic Science, being a discipline that comes first in contact with a multitude of emergent problems, has a part to play in the definition of this reality.     

The normative foundation of social science in law revisited: A reply to melton

Conclusion The primary thrust of Melton's argument is that opposition by organized psychology to the Bork nomination would have been consistent with the jurisprudential philosophy on which social science in law, as a scholarly movement, is based (p. 317). If APA is to justify opposition to Bork or future Supreme Court nominations (e.g., Souter), there should be a clearly identified normative foundation that directly leads to such advocacy. A stance based partly upon scholarship thatimplies reverence for constitutional values and partly upon preambles and principles of an ethical code is too slender a reed from which to cast APA's institutional support for a Supreme Court candidate. When such a stance is adopted, APA unfortunately becomes one of an increasing number of organizations attempting to influence political decisions by claiming allegiance to values consistent with democracy.Advocacy based on a normative foundation of social science in law jurisprudence could be justified by APA if, and only if, (a) there is an identifiable SSL jurisprudence, (b) there is consensus on the values underlying such a jurisprudence, and (c) adherence to these values argues against the nomination of Bork or others (e.g., Souter) to the Supreme Court. Because these conditions currently cannot be met, organized opposition to Supreme Court nominations cannot be justified on a normative foundation of SSL jurisprudence.Editor's Note: This issue marks the introduction of theComments section. Readers are invited to submit brief comments on articles published in this journal.     

论社会保障法的社会法本质--兼论劳动法与社会保障法的关系

一、社会法概念的提出及其定位 关于法学分类方法,自古罗马法学家乌尔比安提出公法和私法的划分标准以来,就长期影响着大陆法系各国法律部门的定性.私法与公法之间的区分成为法律体系化的基础.①作为制度的结果,公法和私法的划分已形成了现代法律制度的基本结构,并因此形成法学的体系.就公法和私法的划分,从法所保护的利益为标准,凡是有关公益的法为公法;有关私益的法为私法.从法律关系的主体为标准,凡以国家或公同团体的一方或双方为主体而规定法律关系的法为公法;规定私人相互关系的法为私法.从法律关系的内容为标准,凡规定国家与公民之间的权力与服从关系的法为公法;而规定公民相互之间平等关系的法为私法.     

法学教育、司法考试与法律职业新论

实行统一的国家司法考试,是我国司法体制改革的一项创新举措,作为一项新的资格考试制度,既有利于提高法律职业的专业化水平,增强了取得法律职业从业资格的严肃性,也极大地推动了法学教育的改革,直接影响着大学法学教育和法律人才的培养。正确处理法学教育与司法考试、法律职业的关系,真正实现这三者之间的良性互动,这是我们法学教育界亟待解决的迫切问题。     

Proof of cancer causation and expert evidence: bringing science to the law and the law to science

This article discusses the medico-scientific and the legal views of cancer causation and how these two approaches impact on expert evidence. Cancer cause lends itself well to an exploration of the critical issues which surround its proof and the role of expert evidence in this proof. The article does not seek to identify or to resolve all the controversies or inconsistencies in the area. Rather, it sets up a basic framework for the general presentation and testing of expert medico-scientific evidence in litigation related to cancer causation. Specifically, it seeks to identify the technical questions of law and medical science regarding which medico-scientific disciplines can be relevant to proving cancer causation, and who the relevant expert witnesses to achieve this task would be. Emerging areas of cancer causation are then examined in light of this framework.     

Human trafficking law and social structures

Human trafficking has only recently emerged at the forefront of policy reform, even in developed nations. Yet, heightened awareness of the issue has not translated into effective policy as the majority of nations have ineffective antitrafficking practices; many countries have failed to criminalize human trafficking, whereas others do not actively enforce statutes in place. By applying Black's theory of law, this study offers a preliminary understanding into the variation of global prosecutorial efforts in human trafficking and adequacy of antitrafficking law. To isolate this relationship, the effects of trafficking markets are controlled. As with prior research, the study finds limited support for the theory. The article concludes with a discussion on the implications of the quantity of antitrafficking law and morphology association for policy development.     

Judicial use of social science research

American courts use social science research in three distinct ways: to make law, to determine facts, and to provide context. In this article, we review and critique the approaches that courts have traditionally taken to dealing with each form of social research. We also summarize and integrate a body of work offering a different perspective that treats law-making research associal authority, fact-finding research associal fact, and context-providing research associal framework. We end by proposing a coherent sequence of steps that courts should take when confronted with an empirical question about human behavior.This article was prepared under the auspices of the Task Force on Judicial and Regulatory Decisionmaking of the Carnegie Commission on Science, Technology, and Government. The views expressed are those of the authors rather than of the Task Force or the Commission. We are grateful to David Z. Beckler, Associate Director, for his comments. Requests for reprints should be sent to either author at the School of Law, University of Virginia, Charlottesville, VA 22901.     

Police departments under social science scrutiny

The common flaw in research on police work is the failure to observe principles of organizational analysis. This is often the result of treating individual police officers, rather than the department, as the unit of analysis. Here we review the design of eight recent studies selected to illustrate both the usual neglect and the occasional sophisticated application of three organizational principles. These principles are: attention to organizational unity; analysis of subgroups; and examination of the organizational environment.     

Aggression,science, and law: The origins framework

Human societies have formalized instincts for compliance with reciprocal altruism in laws that sanction some aggression and not other aggression. Neuroscience makes steady advances toward measurements of various aspects of brain function pertinent to the aggressive behaviors that laws are designed to regulate. Consciousness, free will, rationality, intent, reality testing, empathy, moral reasoning, and capacity for self-control are somewhat subject to empirical assessment. The question becomes: how should law accommodate the wealth of information regarding these elements of mind that the science of aggression increasingly makes available? This essay discusses the evolutionary purpose of aggression, the evolutionary purpose of law, the problematic assumptions of the mens rea doctrine, and the prospects for applying the neuroscience of aggression toward the goal of equal justice for unequal minds. Nine other essays are introduced, demonstrating how each of them fits into the framework of the permanent debate about neuroscience and justice. It is concluded that advances in the science of human aggression will have vital, but biologically limited, impact on the provision of justice.     

邓小平理论法学初探

邓小平理论是马克思主义在中国的新发展,其法制思想内容丰富、博大精深,科学地回答了我国社会主义法制建设和法学研究领域中的一系列根本问题,如法的本质问题,民主与法制的关系问题,依法治国问题,法的功能与价值问题,市场经济法制建设问题,等等.邓小平关于社会主义民主与法制建设的论述,是邓小平理论的重要组成部分,是我们进行社会主义法制建设和法学研究的根本指导思想,因此,高举邓小平理论伟大旗帜,建立邓小平理论法学是中国法学界面临的一项十分重要而紧迫的课题.     

行政法学二十年来的反思与前瞻

中国行政法学二十年的发展,经历了一个恢复、初步发展、快速发展、趋于成熟的发展过程。虽然取得的成就是巨大和令人瞩目的,对于促进我国行政法制的建设和发展发挥了重要的作用。但是,行政法学的理论研究还存在着一些缺陷和不足,有待于在未来行政法学的发展中予以解决,并面对一些新的行政法学研究领域有所突破和创新。     

行政刑法的社会保障职能

行政刑法是我国预防和打击犯罪的法律体系中重要的组成部分,其与侵权行为共同处于防范的前沿地带,在综合治理、社会治安中发挥着越来越重要的作用,但在司法实践中,人们对其地位、作用有待进一步提高和强化。鉴于此,撰写本文,以期达到社会的认同和人们的关注。