Decolonizing criminal law: a critical appraisal

The paper is prepared to argue the condition of decolonizing the field of criminal law – a field which is particularly important for being the first colonial transplant in this subcontinent. To put it another way, this paper is an attempt to locate the colonial elements that can be found in the Penal Code 1860 and to give a way forward to decolonizing such elements in the socio-political milieu of the twenty first century. It therefore explores the colonial origin of modern criminal law in India, which is followed by tracing out importance as well as the ways of decolonizing it.     

The Further Development of Democracy in Soviet State Administration

Soviet agencies of state administration are carrying on a great deal of organizational and creative activity toward resolving problems involved in administrative-political, economic, socio-cultural and military construction. These agencies consist of representatives of the working population, serve its interests and are under its control. Despite this, many opportunities exist for greater democracy in their operations. In the activities of certain links in the administrative apparatus, cases of deviation from Leninist principles are still encountered: replacement of collegial solution of problems by one-man decision; violations of legality; ignoring of public opinion; swelling of paid staffs, etc. These deviations do not define the nature of the Soviet state apparatus, but one cannot make peace with them. They must be exposed and eliminated more rapidly.     

民主政治对建设社会主义法治国家的作用

本文通过对社会主义法治国家基本特征的论述及实现法治途径的比较分析,提出了我国应选择推行型法治途径,并在此基础上阐释了民主政治对社会主义法治国家形成的作用。     

The Constitution of a European Democracy and the Role of the Nation State

Starting from the presupposition that European democracy is necessary to the survival and development of the European Union, the author deals with the process which may entail a European constitution, and discusses the elements of the present legal structure of the EU which are conducive to a European Democracy. In particular, the author focuses on the incomplete, polycentric, and dynamic character of a possible EC/EU constitution, and on the duality of its legitimating principle. This claim is that these characteristics necessitate some institutional modifications of democratic principles if compared with national democracy, and that Euro-democracy is possible if we do not simply apply the standards of democracy valid for Member States, but succeed in developing criteria which are adequate to the institutional qualities of the EC/EU. Finally, the author maintains the legal character of the regulatory power of the Community, and invokes the mutual legal bonds linking the Member States and their peoples as the source of the Community.     

On Revolutionary Democracy,Its State and Political System

In recent years much has been written about the contemporary revolutionary democracy of Afro-Asian countries, particularly in connection with the new experience of noncapitalist development or socialist orientation. Serious study of the revolutionary process in former colonial and semicolonial countries would be inconceivable without the formulation of this problem. Under the conditions of the general crisis of capitalism and the growing influence of scientific socialism, conceptions of the departure from capitalism, of the adoption of a noncapitalist path of development and of a socialist orientation in domestic and foreign policy, are developing and maturing in various Eastern countries as a result of the evolution of the ideas of national liberation and social justice and the fact that the leading champions of independence and progress are beginning to embrace scientific socialism. Study of the experience of the movement of Asian and African countries along the noncapitalist path shows that they have made major socioeconomic progress, but also reveals significant objective and subjective difficulties in the policies of the revolutionary democratic forces.     

The State and Power

The historic decisions of the 22nd Party Congress, and the new Party Program adopted by that congress, have posed major and serious tasks before Soviet social science, particularly that of a comprehensive study of the paths of development from the socialist state to communist public self-government. In the solution of this task, Soviet philosophers and jurists inevitably encounter questions pertaining to the concept of power and its relationship to the state. (1)     

The Responsible Subject As Citizen: Criminal Law, Democracy And The Welfare State

This paper seeks to explain two problems posed by the history of criminal law doctrine by situating them in the context of the political sociology of citizenship. First, the paper outlines the logical connection between the rise to doctrinal orthodoxy of the idea of the responsible subject and the contemporaneous emergence of universal political citizenship. Secondly, it argues that subjectivist orthodoxy in doctrine may be reconciled with the apparently antithetical forms of regulatory strict liability law within the terms of 'modern democratic citizenship' as the latter were conceptualised by T. H. Marshall. Finally, by means of a comparison with Alan Brudner's recent philosophical rationalisation of the modern criminal law, it proposes that situating the criminal law in its environment of citizenship will help us to understand better the tensions that underlie contemporary challenges to its doctrine.     

Democracy and corruption: a complex relationship

We argue that an ‘electoral democracy’ is not sufficient to reduce corruption. Our contention is that the institutions associated with mature democracy are crucial to successfully deterring corrupt behaviour. At the core of our argument is the idea that with well-functioning institutions, the probability of detection and punishment is sufficiently high to deter most decision makers from choosing to act corruptly. The empirical evidence we present supports this idea. The nonlinearity of democracy variables is tested to confirm that an advanced stage of democracy is crucial for combating corruption.     

Seeing Like an Islamic State: Shari‘a and Political Power in Sudan

Islamic law, or shari‘a, has been incorporated into the legal systems of many states. In much of the existing literature, this process is understood as part of the colonial and postcolonial state's attempt to render law legible—that is, codified, standardized, and abstract. In this article, I show how some state actors chose to move in the opposite direction, actively discouraging the transformation of shari‘a into a formal and codified system of law. Using the case of colonial and postcolonial Sudan, I argue that these actors viewed legal legibility as a threat to state power, recognizing the jurisgenerative potential of an informal and uncodified law.     

权力的分化及国家权力的社会化--评郭道晖的《论权力的多元化与社会化》

公民权利与国家权力的关系问题是法学（包括法理学）的一个基本问题。就我国国内的研究看，对于权力问题的关注则是近些年的事，最初是对权利和义务关系的讨论，之后一部分学者将目光投向对于国家权力问题的考察。 ２０世纪８０年代以来，国内对于权力问题的研究逐渐从政治学领域转向法理学界，涌现出一些研究成果。尽管学术论著不多，但所涉足的范围已囊括了权力的概念、类别、构成、起源、分化、演变、异化，以及权力与权利、权力与责任、权力与民主宪政、权力腐败与权力制约等诸多方面，其见解不乏新意。ｏ权力问囚的彼关注自然同正处于…     

论国家紧急权力

国家紧急权力是国家在宣布进入紧急状态之后所行使的一种不受民主宪政的分权原则和人权保障原则的一般限制的国家权力,其目的是通过必要的权力集中与人权克减来达到消灭危机、恢复国家正常秩序的目的。国家紧急权力的行使涉及到所有的国家机关,三权分立的宪政原则要在一定程度上转变为三权合作,以便集中所有的国家机器来应对危机。国家紧急权力的行使由于具有高度的集中性与独裁性,因此必须建立相应的制约机制以保证紧急状态的宣布不会成为独裁专制的开始。     

State Power in Countries of Socialist Orientation

One of the major questions in the Marxist-Leninist theory of noncapitalist development of formerly backward countries is that of state power. In such countries, state power has come into being under conditions of distinctive relationships of class forces (primarily in the absence of the hegemony of any particular class); in turn, it exercises an enormous influence upon the processes of development of classes and their regrouping. The social nature of many phenomena and institutions is indissolubly linked to the character of state power. Moreover, the revolutionary establishment of the new power is the starting point of noncapitalist development itself. Therefore, a correct solution of the question of the nature of state power holds fundamental significance for the evaluation of the principal aspects of sociopolitical life in the countries of socialist orientation.     

中国语境下司法民主的理论建构——基于政治正当性与权力合法性视角

从政治正当性与权力合法性的角度检视新时期人民司法的实践,可以看到,尽管新时期司法民主的理论创新与制度实践所要解决的问题依然是如何有效地建立起中国司法的权威,但是它还需要解决好司法为民、便民的问题.因而,必须明确,中国司法民主的理论建构与司法实践必须在坚持法治与司法职业化的前提下,尽可能地确保社会大众能够理性、有效、适度地参与司法,以便于提高参与司法的便利性,扩大司法的参与性,增强司法的透明性,保持司法的中立性;同时,要坚持司法的法治原则,秉持依法司法的宗旨,遵循司法的程序性、专业性与规律性,通过程序的开放,贯彻司法的责任原则,理性、适度地参与司法活动.唯有此,才能够形成合力与合作,确保司法民主意涵的真正落实,推动司法权威的建成.     

“最高国家权力机关”的权力边界

《宪法》第62条第16项对全国人民代表大会作了兜底式授权。鉴于全国人大在我国的特殊优越地位,如何在宪法框架内为其划定权力边界,是理论上与实践上的重大议题。宪法上所称的最高国家权力机关应当作为一个规范概念予以把握,以判断全国人民代表大会的权限。第一,最高国家权力机关的最高是指在公权力机关序列中的相对优越,而不是绝对无限;第二,最高国家权力机关在行使监督权时,不应损及被监督者依据宪法而享有的职权的完整性与独立性;第三,最高国家权力机关的实际行动能力决定了应当由其行使的职权是有限的。     

European Parliament and Executive Federalism: Approaching a Parliament in a Semi-Parliamentary Democracy

Abstract: The European Parliament has often been understood along the lines of theories of European integration—compared to regular parliaments by Federalists or belittled as merely an international assembly by intergovernmentalists. This paper proposes an understanding of the European Parliament not along theories about what the EU should become, but what it is and surely will continue to be, that is a very distinct federal structure. The European Parliament is a parliament in an executive federalism—with far‐reaching consequences for its form and functions. After outlining the characteristics of this federal structure, these consequences will be demonstrated by analysing the European Parliament in contrast with two ideal types of parliaments: the working parliament, separated from the executive branch and centred around strong committees (like the US Congress), and the debating parliament, characterised by the fusion of parliamentary majority and government as well as plenary debates (like the British House of Commons). Dwelling thus on a comparison to a legislature in a non‐parliamentary federal system, like the US Congress, this paper argues that the European Parliament might best be understood as a special case of a working parliament. Finally, it will be proposed to consider the influence of executive federalism not only as fundamentally shaping the European Parliament but also as rendering the EU generally a semi‐parliamentary democracy.     

State Power and Self-Government Under Socialism

The experience of history offers persuasive evidence that socialism can take firm root and develop successfully only if the power of the working class is solid and rigorous, and if that class acts in alliance with all other working elements of the population, if society is led by a Marxist-Leninist party, and if there is a carefully structured and active state. That state must function as organizer of economic, political, and cultural development. Socialist ownership of the fundamental means of production must prevail in an environment of extensive application of the principles of socialist democratic procedures. The communist and workers' parties of the lands of the socialist commonwealth, basing their activity on the universal regularities of the struggle for socialism and communism, creatively develop revolutionary theory and strive for further progress in all spheres of the life of society.     

自然资源国家所有权公权说

自然资源国家所有权在主体、客体、内容、行使、救济与责任等方面都与物权存在本质差异，其并非处理平等主体间财产关系、以确立特定主体对特定物的“直接支配”为内容的民法物权，而是划分国家与个人界限，为“全民”意义上的抽象国家以立法和行政手段“间接干预”资源利用提供合法依据的宪法公权。资源国家所有权与资源物权并非同一层面的事物，二者并不排斥，而是互补并存。国家所有权只是形成资源利用秩序的前提，资源物权才是建立秩序的关键，其需要明确的法律规定，而无法从宪法权性质的国家所有权中推出。没有清楚区分公权与私权、公物与私产是导致国有资源与民众产生“疏离”、偏离公益本质的根源，这一状况应当改变。