论社会管理创新中的刑事法治问题

社会管理创新是当今法学界讨论颇多的一个话题。对于社会管理创新与刑法的关系,要建立在法治的认识前提下,社会管理创新与刑法的基本原则并不冲突,刑法的天然属性使得其与社会管理存在紧密的互动关系,同时,刑法的保障法地位,又决定了社会管理创新需要刑法做坚强的后盾,保障秩序稳定。为了适应社会管理创新的要求,基于两者的契合,刑事法治发展需要从五个方面作出努力:关注社会情势,贯彻宽严相济刑事政策;保障公民权利,重视民生犯罪;"刚柔并济",坚持以人为本;革新纠纷解决机制,灵活、多样化解矛盾;落实行刑社会化,契合多元治理理念。     

Social goals and appropriate policy for corrections: An economic appraisal

This paper presents a logical approach to the problem of devising socially acceptable policy for the operation of a corrections system. As an alternative to considering separately the frequently mentioned, but conflicting goals of providing rehabilitation, retribution, detention of dangerous criminals, and general and specific deterrence of criminal behavior, the authors suggest that the goal be couched in terms of minimizing the social cost of crime. By developing a model which illustrates how the corrections process relates to the various facets of the criminal justice system, and by isolating the functional relationships which must be taken into account, the authors are able to show there is an optimal level of rehabilitation, detention, and deterrence associated with a socially optimal level of criminal activity and criminal justice control activity. Although much remains to be learned before such a model can be effectively implemented, considerable research has already pointed the way for learning how to more effectively balance the alternatives for policy. An enumeration of the policy implications of the model identifies targets for further research.     

“It’s All About Something We Call Wasta”: A Motivated Moralization Approach to Favoritism in the Jordanian Workplace

There has been a limited focus on the construal of justice judgments in contexts where norms are potentially conflicting, despite the relevance of norms in justice research. The present study aimed to close this gap by looking at the case of favoritism in Jordan where such conflicting norms are highly salient. A qualitative approach was chosen to facilitate ample exploration of the contextual complexities of the study’s setting. The main data basis were 22 problem-centered interviews conducted with managers and employees in Jordanian non-profit organizations. Data collection and analysis were guided by grounded theory methodology. The resulting theoretical framework of motivated moralization demonstrated that people flexibly construed favoritism as either unjust or justifiable to pursue a number of goals. Instead of relying on a single norm or standard, people strategically adopted the norms that were best suited to substantiate or legitimize a desired position. The norm conflict surrounding favoritism in Jordan facilitated this process by providing a selection of fitting norms for appropriation.     

Early Childhood Trauma Impact on Adolescent Brain Development,Decision Making Abilities,and Delinquent Behaviors: Policy Implications for Juveniles Tried in Adult Court Systems

By examining previous literature on the brain’s developmental process during adolescence, this paper aims to determine how early childhood trauma potentially effects decision making in adolescence through exploring self-regulation theory. Through a self-regulation framework, the hope is to determine the connection, if any, between early childhood trauma, delinquent behavior, and involvement in the juvenile justice system. The author insists that not only do adolescents have less culpability due to their brain developmental stage compared to adults, but also early childhood trauma puts adolescents at a greater risk of impaired self-regulation which allows for more probable delinquent behavior. This paper also considers implications for social policy makers and youth advocates concerned with juvenile offenders tried in adult courts and existing racial disparities in the system.     

对加强和创新社会管理根源性问题的思考

加强和创新社会管理,是加强社会建设的一个重要课题,它对实现全面建设小康社会宏伟目标、实现党和国家长治久安具有着重大的战略意义。笔者以科学发展观为统领,就加强和创新社会管理中,保持社会的公平正义问题;社会管理支撑体系的建设问题;加强社会管理主体的建设问题,进行了深入的探究并提出一些粗浅的观点。     

论司法与社会和谐

社会和谐是人类长久以来的追求,在构建和谐社会的背景下,社会和谐更是受到前所未有的关注与重视。本文着重探讨了司法与社会和谐的辩证关系,在充分论述司法与社会和谐具有和谐性的同时,也指出了二者存在的矛盾和冲突,希望借此更能全面、客观、深刻地认识司法与社会和谐的关系,更好地完成通过司法实现社会和谐的目标和使命。     

Criminal justice plannimg: Case for a comprehensive approach

All too often the task accomplishment of one actor in the criminal justice system is frustrated by the actions of other components of the system. Decisions within the components of the criminal justice system often are not made from a stystemic perspective, therefore frustrating the objective of reducing crime. While there may be an abundance of people concerned with a plethora of small problems and roles, what is lacking is a group of officials viewing the system in its totality. By failing to develop a holistic approach within which to analyze the problems each component of the criminal justice has, these problems will not be successfully resolved.The use of comprehensive planning as a mechanism which will coordinate all of the diverse activities within the criminal justice system and direct these activities to clearly articulated systemic goals has the potential to overcome the problems each component of the criminal system generates internal to the system itself. This paper seeks to explain and evaluate the potential of comprehensive planning.     

Punishment and Beyond: Achieving Justice Through the Satisfaction of Multiple Goals

We investigated the hypothesis that people's need for punishment does not preclude a desire for restorative sanctions that address the repairing of the harm to victims and communities caused by wrongdoing. Study 1 showed that although people felt it was important to punish the offender to achieve justice, they viewed additional justice goals as equally necessary. Study 2 revealed that people viewed sanctions as differentially able to fulfill various justice goals. Study 3 showed that the target on which respondents focused—the offender, victim, or community—determined which sanctions they selected to achieve justice; and that people did tend, by default, to focus on punishing the offender when responding to crime. These findings, taken together, suggest that people view the satisfaction of multiple justice goals as an appropriate and just response to wrongdoing, which allows for a possible reconciliation between the "conflicting" goals of restorative and retributive justice.     

Balancing justice goals: restorative justice practitioners’ views

Despite the importance of facilitators, staff, and volunteers to restorative justice programs, we know very little about what they think about the goals of restorative justice. This paper fills that gap by reporting the findings of a survey of restorative justice practitioners in Nova Scotia, Canada. Participants rated the importance of 29 justice-related goals such as punishment and accountability. The results show how respondents distinguish between, prioritize, and balance competing justice goals. A factor analysis shows how goals cluster together revealing more depth about how practitioners understand goals, such as accountability, that have different meanings depending on the context. The findings are particularly interesting because the restorative justice program in Nova Scotia is deeply embedded in the criminal justice system. The findings speak to concerns about whether programs rooted in the mainstream system risk being diluted by dominant criminal justice system discourses. I conclude that restorative justice practitioners can prioritize the values of restorative justice in a program that is deeply rooted in the mainstream criminal justice system.     

Bargaining for justice: A means to resolve competing justice claims

In many types of social situations, individuals defend their claims to a portion of the rewards by arguing that they are just. Although a great deal of research demonstrates that individuals differ in their distribution preferences and thus their beliefs about what is fair, the literature curiously omits consideration of the consequences of these differences, especially the conflict they may engender. This paper first reviews the few attempts to address such justice conflict. The limitations of these approaches suggest concerns to be addressed in an alternative framework. The paper presents a theoretical discussion of this alternative that integrates assumptions about distribution preferences, justice beliefs, conditions fostering the emergence of justice conflict, and elements of negotiation processes as a basic framework for predictions about the bargaining strategies individuals may employ to resolve competing justice claims.     

Rawlsian difference principles and economic utilitarianism

John Rawls's theory, justice as fairness, constitutes an important alternative to a utilitarian theory of social justice. This essay addresses the relationship between utilitarian choice and the difference principle that is central to Rawls's theory. It argues that the difference principle, if applied to utility, is not supportable in the economic utilitarian framework. The Rawlsian result could be consistent with this framework if expressed with respect to income rather than utility. However, the argument in a utilitarian framework is ad hoc and not compelling. The paper presents conditions under which a utilitarian in an initial position, with some similarity to Rawls's original position, would choose the Rawlsian difference principle. The choices coincide only under the unrealistic assumption that redistribution entails no efficiency loss.     

A Social Justice Model for a World Criminology

It is contended here that criminologists should be making conscious and more direct efforts to contribute toward solutions to the increasing problems of global disorder. This paper discusses the problem of social injustice in relation to social disorder, outlines the beginnings of a theoretical model for social justice, and suggests empirical studies and needed methodology to further development of the field of world criminology.     

Wither Criminal Justice? An Argument for a Reformed Discipline

The American criminal justice system fails to achieve justice, reduce crime, and provide equal protection to Americans regardless of their social class, race, and gender. But, criminal justice as an academic area of study has become a popular and fast growing liberal arts major in the United States, churning out tens of thousands to work in the criminal justice system. Given the demonstrable harms caused by criminal justice, which are suffered disproportionately by the least powerful people, academic criminologists and criminal justicians have the obligation to promote a reformed discipline. This article briefly summarizes the evidence of bias in the criminal justice system and then turns to how these biases relate to criminal justice as an academic discipline. Using the war on drugs as an example, I argue that the practice of criminal justice as an academic endeavor runs counter to the goal of promoting social justice in America. One of the ironic conclusions of this article is that criminal justice as an academic discipline must get smaller if we are to achieve larger goals of social justice outlined here. This revised version was published online in July 2006 with corrections to the Cover Date.     

Disputes in Japan: A cross-cultural test of the procedural justice model

Research on procedural justice has provided ample evidence that people are concerned not only with the outcome of disputes but also with the fairness of the procedures used to resolve disputes. The majority of the studies examining the importance of procedural justice have been conducted in the United States and Western European countries. This study tests the generality of the procedural justice model by examining the importance of fair procedures to people in a non-Western country, Japan. This study also examines the meaning of a fair procedure from a legal perspective. Past studies have drawn the procedural justice criteria considered from social psychology. We examine several additional criteria derived from the legal concept of due process of law. Results indicate that fair procedures are more important to subjects than fair outcomes in both a traffic accident dispute and a breach of contract case. Furthermore, across both types of disputes, fairness concerns are more important than nonfairness concerns. These results are consistent with findings from studies conducted in Western countries. A new finding that emerges from the study is that the clarity with which a procedure is formulated and presented is a strong determinant of procedural justice judgments.     

民事诉讼受理制度改造的理性视角

民事诉讼受理是纠纷进入司法程序的初始必经阶段,对于当事人诉讼权利保障意义重大.随着经济体制改革的深化和经济的快速发展,许多深层次的矛盾不断出现,民众的诉求越来越多,而我国的法律体系和社会保障机制还不够完善,人民法院作为解决矛盾纠纷的专门机构,应当担负起为构建和谐社会提供有力司法保障的历史任务,最大程度地吸纳化解矛盾纠纷.然而,现行民事诉讼受理制度所规定的起诉条件,既包括实体内容又包括程序要求,确定性有余而灵活性、包容性不足,虽然能够一定程度地起到过滤纠纷,节约司法资源的作用,但其对于新型权利诉求进入诉讼渠道的阻隔作用日益显现,甚至为个别地方限制当事人正当诉权的行使提供了借口.在改造方案的设计方面,应当理性审视现有司法资源和司法环境,更宜采渐进式而非跃进式的方案,避免由于准备不足而导致司法不堪重负,制约正常功能的发挥.     

Factors Influencing Intake Disposition in a Juvenile Court

Abstract This study examined whether a juvenile court's practices were consistent with its declared philosophy and whether it accommodated the goals of serving individual justice and protecting societal interests. The results showed that intake disposition was determined primarily by the type of prior disposition rather than by the seriousness of the current offense or by the social background of the juvenile.     

Improving criminal justice through better decision making: Lessons from the medical system

Against a backdrop of unprecedented growth in the criminal justice system stand calls for increased government accountability, yet substantial gaps between ideal and actual practice remain. Many observers have pointed to the problem and some of its causes and solutions, including the need for performance monitoring and evidence-based practices. Less attention has been paid to how decision-making errors influence effective criminal justice practice. This article draws on examples from medicine, where decision making has been examined in more depth, and applies them to criminal justice. Its goals are to identify the types of decision-making errors that can undermine effective practice and policy in the criminal justice system, illustrate how systemic factors influence everyday decision making, and draw attention to the benefits of decision making-focused monitoring and assessment. The article concludes by discussing the implications for performance monitoring and improving the criminal justice system.     

Interest groups in the criminal justice process

This article reviews recent research about interest groups in criminal justice policy making and considers the state of knowledge in this area. Portions of major studies by Downs, Berk et al., and Berk and Rossi are discussed. These studies came to varying conclusions about the nature and importance of interest group influence. Three points are suggested by the research described: (1) groups composed of criminal justice professionals (law enforcement personnel, corrections officials, attorneys) are more influential than those with social service or reform concerns, (2) particular social, cultural, and economic conditions in the various states affect interest group structure, power, and goals, (3) criminal justice legislation is generally enacted on a consensual basis without open conflicts in state legislatures and without major public involvement in the process. Some evidence that would tend to modify these conclusions is also presented. Avenues of future research concern are suggested and a framework for further analysis of interest groups in the politics of criminal justice is proposed.     

Inducing corporate compliance: A compound corporate liability regime

Corporate liability regimes have two major social goals: (i) inducing corporations to internalize all social ramifications of their activity; and (ii) inducing corporations to prevent, deter, and report their employee misconduct. The scholarly polemic has shown that none of the liability regimes recognized thus far in the literature efficiently satisfies both social goals. Following a Law and Economics approach, this paper develops an innovative regime that may comprise an optimal corporate liability framework in most settings. The Compound Corporate Liability Regime developed in this paper is a two-layer strict liability regime. Under this regime, corporations that self-report their employee misconduct incur a sanction that is reduced by the variable enforcement costs saved due to their self-reporting. Such a liability framework aligns social and corporations’ interests, and thereby satisfies both social goals of corporate liability regimes.