试论我国法官的精英化

现代社会精英是在民主政治、知识理性和社会分工潮流等因素共同作用下 ,通过开放、流动的社会竞争机制形成的卓越阶层。现代法官群体属于现代社会精英的一部分 ,它在构筑经验正义 ,推进民主与法治 ,维护法律统一实施等方面发挥着不可替代的作用。造就人文主义模式的精英法官群体是我国法官职业建设的目标 ,未来应通过保障宪法意义上的司法独立 ,改革法官选任制度 ,保持法官规模精当适度 ,以及防止法官异化等途径 ,推进法官精英化目标的实现     

The empty place of European power: Contested democracy and the technocratic threat

In this article, I analyse the European Union (EU) in the light of the Lefortian question: What place does power have in a democracy? Claude Lefort has argued that modern democracy is a regime where the place of power is empty. In this article, I investigate what this entails for the EU. I take the current situation of democracy in the EU as being marked by two developments: the contestation of democracy by citizens on the one hand and the hollowing out of democracy at the EU level on the other. Exemplary for the first development are the popular protest movements known as the indignados. The second feature is exemplified by governance and technocracy. My argument suggests that the critical response of the former to the latter can in fact be read as the claim that what should have been the empty place of power in European democracy has come to be occupied by the establishment of an authoritarian regime of expert rule.     

The Rule of Law and Authoritarian Rule: Legal Politics in Sudan

Mark Fathi, Massoud . 2013 . Law's Fragile State: Colonial, Authoritarian, and Humanitarian Legacies in Sudan . Cambridge University Press. Pp. xxii + 265. $109.99 cloth, $34.99 paper. Does the rule of law guarantee peace and democracy, as so many people in the development and governance field believe? What are the historical and sociocultural conditions that shape the way rule of law mechanisms work in practice? Mark Massoud's monograph tracing the changing dimensions of the rule of law in Sudan from its colonial period to the present offers an important perspective on these questions, casting doubt on the simple argument that the rule of law produces democracy and peace. Instead, he shows how colonial and authoritarian rulers used the rule of law to consolidate power and legitimate their rule. In Law's Fragile State: Colonial, Authoritarian, and Humanitarian Legacies in Sudan, Massoud develops the concept of legal politics, arguing that the way the rule of law works varies with the political system in which it is embedded. He concludes that the forms of legal politics that reinforce the power and authority of legal institutions are more likely to sustain an authoritarian state than to bring democratic rule. His analysis is a valuable caution to those who promote the rule of law as the salvation for all. Taking a sociolegal perspective, he shows how it works in practice.     

试论政府善治视域下我国行政问责制的建构

在我国目前的政治语境下，建立和实施行政问责制具有重要的现实意义。行政问责制是建设责任政府、推进民主政治的一个重要途径，也是实现政府良好治理的关键。然而，目前我国行政问责制在实践中仍面临异体问责薄弱、问责法律缺失、政府信息公开匮乏等诸多困境。因此，将成为加强异体问责，实现问责主体的多元化；健全行政问责的法律体系；推行政务公开，实现“阳光行政”。     

邓小平法治思想与我国政府法治的实现路径

邓小平法治理论论述了社会主义法制建设的基本方针、基本要求、民主与法制的辩证关系和立法、执法、司法、法制宣传教育以及一系列法治理论,对推进我国政府法治化进程具有重要的指导意义,也为我国政府法治的实现路径指明了方向。     

Civil Society and the Lawyers’ Movement of Pakistan

This article examines the conditions under which judiciaries become politicized under authoritarian regimes, focusing on the 2007–2009 lawyers’ movement of Pakistan. The prodemocracy movement arose after the sacking of the Supreme Court Chief Justice by General Musharraf, and was remarkably successful in removing Musharraf and restoring the sacked judges. Although the conventional wisdom is that such judiciaries are quiescent, I argue that judicial actors can play important roles in democratization, but only under certain conditions. In the case of Pakistan, civil society actors were vital in helping the judiciary become politicized and in linking the lawyers’ movement to the larger cause of democratization. I argue that, otherwise, the lawyers’ movement could not have headed the movement that eventually led to the restoration of democracy. Specifically, I argue that civil society played a crucial role, framing the movement as broad, national, and prodemocracy, which enabled it to overthrow the authoritarian regime.     

Judicial oversight of policing: investigations, evidence and the exclusionary rule

Police procedures and practices in the investigation of crime are shaped by many things. One particularly important constituent part of the development of investigative procedures and practices is the approach of the courts to the admissibility at trial of evidence obtained in a certain manner. While a judge can only address the specifics of whatever cases are brought before him, the judiciary as a whole have a significant role to play in terms of police accountability and governance through their development and application of any exclusionary rules of criminal evidence. This article examines the judicial oversight of policing by way of the exclusion of improperly obtained evidence at trial. Its central focus is on the development and operation of the exclusionary rule in Ireland, though relevant law in other jurisdictions, including England and Wales, the United States, Canada and New Zealand, is also considered. Particular attention is paid to the recent Irish Supreme Court decision of DPP v Cash, and its ramifications for judicial oversight of policing.     

Promoting Whole-Process People’s Democracy Following the Rule of Law

Whole-process people’s democracy profoundly reflects the features of socialist democracy with Chinese characteristics, and comprehensively and systematically reveals the concept of people’s democracy as providing important mechanisms of national and social governance. Based on the traditional democratic understanding of democracy as majority rule, whole-process people’s democracy emphasizes the universality and extensive range of democratic governance, but also has the natural value defects of democratic value itself. Therefore, we must organically combine democracy with the values of the rule of law and human rights, to build a well-defined governance order based on people’s democratic value. The whole process in the “whole-process people’s democracy” has really resolved the situation of people’s “absence” from many links of state power operation caused by over-emphasizing the election-democracy in the Western capitalist democratic system. Through the people’s extensive participation and effective supervision, the state power operation mechanism based on the fundamental political system, the people’s congress system, has been ensured to be always in the framework of people’s democratic governance. This effectively realizes the people’s sovereignty and is consistent with the declaration that “all power in the People’s Republic of China (PRC) belongs to the people,” stipulated in the Constitution of China. To improve the governance efficiency of whole-process people’s democracy in practice, we must bring it onto the rule of law, and use the rule of law philosophy and methods to reasonably and effectively resolve all kinds of theoretical and practical problems.     

完善政府环境责任的若干思考

政府环境责任不完善是环境立法存在的根本问题。完善政府环境责任的根本之举是落实环境民主,重点是公众参与环境立法;完善政府环境责任需要环境理念的改变,从管理走向治理,实现环境善治;完善政府环境责任还需要改革现行的环境立法体制,由行政主导变为立法主导。     

Delegation and Authority: Authoritarian Liberalism Today

In light of the reforms undertaken for the sake of the Euro, the article revisits the concept authoritarian liberalism that was introduced in 1933 by the German public law scholar Hermann Heller. This notion seeks to capture the liaison between the ‘strong state’ and economic liberalism. The article suggests that this notion can be fruitfully used to designate the new governance of economic and monetary union. It argues, particularly, that it makes sense to speak of an authoritarian style of governance even if the latter does not wear vestiges of outright repression. Two different faces of authoritarian liberalism can be distinguished: one that looks more towards authoritarianism and another one that views authoritarian rule as a managerial strategy that is good for the economy. The article then speculates whether the EU has been, indeed, successful because it shifts between the two. Disturbingly, there may be something deeply as well as more accidentally authoritarian about European integration.     

The Politics of the Rule of Law*

Abstract. The rule of law should be understood as part of the culture of democracy which requires a distribution of power between a periodically elected legislature and executive and an independent, but publicly accountable, judiciary in charge of a more slowly changing legal doctrine. The rule of law is also essential for the protection of individuals in fast changing pluralistic societies. In both its aspects the doctrine is a product of a particular historical culture, and requires a culture of legality, and not merely the introduction of a few legal rules, for its proper functioning.     

Human Rights Trials in an Era of Democratic Stagnation: The Case of Turkey

Domestic human rights trials are often conceptualized within the context of transition toward democracy. Yet, a recent cascade of trials in Turkey defies this argument. Between 2008 and 2015, Turkish courts oversaw fifteen trials examining individual criminal accountability for human rights violations carried out by the Turkish military during the conflict with the PKK in the 1990s. The cascade of trials has emerged and remained ongoing while the Turkish regime has become steadily more authoritarian. This article explains the emergence of these trials by the redistribution of power among elite actors, which created a window of opportunity allowing for ongoing legal mobilization to result in prosecutions. Drawing on original data from interviews conducted in Turkey between 2014–2015, this study demonstrates the importance of power redistribution for human rights during periods of democratic stagnation, while emphasizing the ability of trials to contribute to the contestation of hegemonic narratives.     

环境治理和可持续发展：中国环境法的成就、问题和展望

本文阐明了中国环境法60年的发展概况、所取得的成就、所存在的主要问题以及今後的发展方向。主张在环境立法内容方面,加强有关环境治理、环境善治、公民环境权、环境民主、公秉参与、环境知情权、环境公益诉讼、政府环境责任及政府环境责任问责制方面的立法：在环境法学研究方面提出：促进研究范式从“主、客二分”到“主、客一体”的转变;促进环境法上的人的模式从经济人模式、主体人模式向生态人模式转变。认为环境法治理建设应该以可持续发展为目标,以生态文明为方向,以环境法治为灵魂,以维护环境正义公平为宗旨,以环境安全为前提,以人与自然和谐相处为核心,以环境民主为手段,以追求环境效益和环境效率为激励机制,以健全综合生态系统管理和环境“善治”机制为导向,充分发挥环境法律调整人与自然关系的作用,使其成为建设环境友好社会、资源节约型社会和生态文明社会的法律保障。环境法学应该研究生态化方法和综合生态系统管理理论,促进环境法向生态法转变,促进环境法律制度的生态化．     

治理视野下的信访制度

中国的信访制度运行50年,在21世纪进入了制度变迁的关键时期。从历史的考察和现实的分析可见,中国特色的信访制度更加符合治理的逻辑而不是法治的逻辑。在治理的视野之下,按照合法性、透明性、责任性、法治、回应和有效的目标,改革信访制度的现实路径应着眼于改善信访的社会环境、合理定位信访功能、坚持法治原则、注重信访治理过程及信访治理的社会效应、探索多样化处理问题的方式。     

经营判断原则在日本的实践及对我国的启示

经营判断原则作为一个英美法上的判例法理,在完善公司治理结构、救济董事因经营过失而产生的责任方面具有重要的意义,同时也越来越受到包括我国在内的许多大陆法系国家的重视。日本的学术界以及司法实务界长期以来在对该原则的研究和实践中所取得的成果,对我国引入经营判断原则具有一定的借鉴意义。     

The accountability of non-governmental actors in the digital sphere: A theoretical framework

The last decade has seen increasing demands for greater accountability in digital governance. What, however, does accountability require and what normative goods does it serve? This article develops a general framework for assessing digital accountability focused on four normative goods: openness, non-arbitrariness, effectiveness and publicness. As the article will evidence, claims for digital accountability often refer to deficits relating to one or more of these goods. While scholarly attention has deservedly focused on tying powerful digital actors to rule of law guarantees, the article argues that accountability offers an important normative yardstick to allow citizens to contest digital decisions beyond strict legality. The framework therefore provides a basis for both conceptually disaggregating and normatively forwarding accountability claims in the digital sphere.     

Militarized Justice in New Democracies: Explaining the Process of Military Court Reform in Latin America

While a large body of literature emphasizes the importance of judicial reform in new democracies, few scholars have examined the reform of military justice systems in these settings—despite the potential for these courts to compete directly with civilian courts and subvert the rule of law. This article focuses on Latin America to empirically examine how the process of reforming military courts has played out in each democracy following authoritarian rule. We outline two distinct pathways: (1) unilateral efforts on the part of civilian reformers, and (2) strategic bargains between civilian reformers and the military. Within the unilateral category, we further distinguish efforts driven by civilian courts, those pursued by politicians, and those undertaken in the context of larger political transformations. Ultimately, we find that, absent a dramatic defeat of an authoritarian regime and its armed forces, reform efforts that do not engage and bargain with the military directly often fail to achieve long‐term compliance and improvements in human rights practices. The success of such reform efforts, therefore, may come at a cost in other areas of democracy and civil‐military relations. We conclude the article by summarizing our findings and reflecting on the lessons they provide for ongoing military justice reform efforts around the globe.     

法治、治理与国家能力

当前流行的法治观念与国家治理在价值立场和制度层面存在一定程度的张力,这根本来源于理念型法治与国家治理所面临的实践难题之间的裂痕。国家能力是指国家将自身的意志转化为现实的能力,不同于政治权力的集中与使用,它更多表示的是国家对于社会需求的回应性。实现优良治理,国家能力建设可谓至关重要。就与国家能力的兼容性而言,那种嵌入国家治理逻辑之中的治理型法治观念更为可取,其不仅可通过规范官僚机构的行为、塑造官僚精英的自我认同、增加制度供给来提升国家的制度化能力,而且能够从铸就公共政治文化和法律判断的正当化角度增强国家的合法化能力。     

Cosmopolitan Democracy and the Rule of Law

The ongoing process of globalization calls out for novel forms of transnational liberal–democratic decision–making. In this spirit, David Held and a group of interlocutors (especially Daniele Archibugi) propose an ambitious model of "cosmopolitan democracy." Although the proponents of cosmopolitan democracy are right to insist that transnational liberal democracy must avoid the dangers of an excessively centralized world–state, their own efforts to do so ultimately fail. The weaknesses of their ideas about the notion of the "rule of law" generate unforeseen theoretical difficulties for their account. Any transnational network of liberal–democratic governance worth defending will need to do a better job preserving a substantial quotient of traditional rule of law virtues.     

How an Authoritarian Regime in Burma Used Special Courts to Defeat Judicial Independence

Why do authoritarian rulers establish special courts? One view is that they do so to insulate the judiciary from politically oriented cases and allow it continued, albeit limited, independence. In this article I present a contrary case study of an authoritarian regime in Burma that used special courts not to insulate the judiciary but to defeat it. Through comparison to other Asian cases I suggest that the Burmese regime's composition and character better explain its strategy than does extant judicial authority or formal ideology. The regime consisted of war fighters for whom the courts were enemy territory. But absent popular support, the regime's leaders could not embark immediately on a radical project for legal change that might compromise their hold on power. Consequently, they used special courts and other strategies to defeat judicial independence incrementally, until they could displace the professional judiciary and bring the courts fully under executive control.