胡适与张君劢的宪政思想比较

胡适和张君劢终其一生都是坚定的宪政主义者,但是,两人的宪政思想并不尽然相同:他们的自由主义分属于消极自由和积极自由的不同谱系;他们都强烈谴责国民党政府摧残人权的行径,但胡适的人权论一直是个人主义的,而张君劢主张社会主义的人权;胡适没有提出具体的政治设计方案,张君劢则完成了庞大的"立国之道"的设计.     

知识产权法律构造与移植的文化解释

近代西方的知识产权法律,以个人主义、自由主义、理性主义作为其人文基础和精神主张。传统文化影响的历史惰性、社会认同法律移植的现实障碍等,对中国知识产权法律的本土化产生了消极影响。有必要实现法律文化的现代化转型,即以新的法律理念模式和行为模式作为知识产权法律现代化的文化基础。     

观察派法治思想研究

观察派的法治思想深受英美自由主义传统的影响,它强调法治与自由的一致性,主张从形式与内 容两个方面来对法治进行全面的认识。法律只有保障大众的利益才能保证法律的合理性与公正性。     

善优先于权利——社群主义权利观评析

社群主义权利观是在批判自由主义个人权利至上观点的基础上建立起来的。它反对自然权利,主张法律权利;主张积极权利优位于消极权利;主张社群权利优位于个人权利;并提倡"善优先于权利"。但它不反对个人自由,也不主张取消个人权利,而是为个人权利划定适当的界,并为个性的形成与存在寻找历史和社会的基础。这种以社群为本的权利观念奠立在反对自然权利基础之上,充分回应了西方社会的现实需要,是现代权利理论的新发展,并对近代西方社会产生了重大影响。     

试论新自由主义背景下的我国金融安全问题

上世纪末逐渐兴起的新自由主义改革浪潮，其背后有一整套看似逻辑周延的新自由主义理论作支持，主张在全球范围内普遍实现经济自由化、私有化和市场化。西方发达资本主义国家常常以各种国际援助附加条件形式强迫发展中国家接受这些改革主张，这给发展中国家的经济金融安全带来了极大的威胁。本文试图在对新自由主义理论本身进行反思的基础上，分析如何抵制其对我国金融安全的负面影响。     

民诉证据应完全由当事人提供

<正> 我国《民事诉讼法(试行)《第56条规定:“当事人对自己提出的主张,有责任提供证据。”就是说,当事人在诉讼中对自己提出的主张有责任向法庭提供证据,加以证明。由于当事人是争议的法律关系的主体,对争议的法律关系的内容及有关的法律事实有真实的了     

法律能规制紧急状态吗？——美国行政权扩张与自由主义法学的病理

行政权在处理紧急议题时的比较优势和宪法上的法律路径使得行政权急遽扩张,但只有在二战后行政权才被自由主义法学视为宪法的威胁者。自由主义法学认为二战后的紧急状态被不断地伪造和利用,行政特权被滥用,这导致了非理性政治的泛滥。自由主义法学据此期望以宪法和法律规制紧急状态从而实现理性政治。但政治不仅仅是理性的活动,自由主义法学理论不足以解释政治的逻辑。     

自由主义视野下民主的解释逻辑及理论检视

自由主义民主观是自由主义从保护个人自由的根本目为出发点所形成的一种民主理论。作为一种民主理论形态,自由主义民主观以保护个人自由为根本目的,以实现权力分立与制衡和限制政府权力为基本特征,并主张通过代议制、分权制衡和有限政府等制度举措来保护个人自由。西方社会数百年的民主实践证明,自由主义民主理论有着巨大的优越性,它对于人类的政治文明做出了巨大贡献,但也应看到自由主义民主的消极影响,即自由主义民主具有保守性以及在平等问题上认识的局限性。     

论当前中国法律理论与民意的冲突——兼论现代性法律的局限性

法律理论与民意的冲突,目前成了一种不容忽视的冲突。泸州"二奶"遗赠案反映了自由权利与社会责任的冲突;"刘涌案"反映了程序正义与实体正义的冲突;"死刑存废之争"反映了法律理想图景与现实正义观念的冲突。冲突的根源在于:现代性法律以个人主义和自由主义为前提预设,把人视为独立自由的平等个体,把错综复杂多样的社会关系剪裁成单一片面的法律关系,要求尽可能地限制国家权力,甚至主张以"人道"规范一切;但是,社会中的人却不是独立自由的,而是受到多种社会伦理规范的制约;国家职能和社会规范都是多元的;民意具有现实性和综合性的特点。现代性法律与中国民意的冲突,本质上是两种不同的国家社会体制的冲撞。现代性法律只能调整特定的社会关系、满足中国的部分需求。     

孟子人性发展观及其法理意义

每一种法律与政治理论都以对人性的根本看法为起点,孟子的自然主义性善论提供了不同于"理性人"的人性学说。结合认知科学的最新进展,由孟子自然主义人性论道德哲学中可尝试提炼儒家规范美德法理学主张。这种规范美德法理学不同于传统的伦理自然法和自由主义权利法理学,它把公民美德的发展与实践作为法律的核心价值,主张国家应当通过法律为公民个人美德发展与实践提供良好的制度支持。它不但批评了通行的现实主义人性观,更为寻找自由法理学和伦理自然法之外的第三条道路提供了理论启示。     

Bhartṛhari and Maṇḍana on Avidyā

The concept of avidyā is one of the central categories in the Advaita of Śaṇkara and Maṇḍana. Shifting the focus from māyā, interpreted either as illusion or as the divine power, this concept brings ignorance to the forefront in describing duality and bondage. Although all Advaitins accept avidyā as a category, its scope and nature is interpreted in multiple ways. Key elements in Maṇḍana’s philosophy include the plurality of avidyā, individual selves as its substrate and the Brahman as its field (viṣaya), and the distinction in avidyā between non-apprehension and misapprehension. A closer investigation shows that Maṇḍana is directly influenced by Bhartṛhari’s linguistic non-dualism in developing the concept of avidyā. This study also compares other key constituents such as vivartta and pariṇāma that are relevant to the analysis of avidyā. As the concept of counter-image (pratibimba) emerges as a distinct stream of Advaita subsequent to Maṇḍana, this study also compares the application of pratibimba in the writings of Bhartṛhari and Maṇḍana.     

Unraveling the <Emphasis Type="Italic">Kāvyaprakāśa</Emphasis>: Jayadeva Pīyūṣavarṣa’s idiosyncratic sequence of topics in the <Emphasis Type="Italic">Candrāloka</Emphasis>

In his twelfth century alaṃkāraśāstra, the Candrāloka, Jayadeva Pīyūṣavarṣa reverses the sequence of topics found in Mammaṭa’s Kāvyapr-akāśa, an earlier and immensely popular work. With such a structural revisionism, Jayadeva asserts the autonomy of his own work and puts forth an ambitious critique of earlier approaches to literary analysis. Jayadeva investigates the technical and aesthetic components of poetry in the first part of the Candrāloka, prior to his formal semantic investigations in the latter half of the text, thus suggesting that aesthetic evaluations of poetry beneficially inform scientific investigations of language. Jayadeva’s organization of his chapters on the semantic operations, moreover, intimates that the study of suggestive and metaphoric functions of language clarifies our understanding of denotation, which is conventionally understood to be the primary and direct path of verbal designation.     

Immigration,intermarriage and the changing face of Europe in the post war period

In this article we compare the propensity to intermarry of various migrant groups and their children who settled in Germany, France, England, Belgium and the Netherlands in the post-war period, using a wide range of available statistical data. We try to explain different intermarriage patterns within the framework of Alba and Nee's assimilation theory and pay special attention to the role of religion, colour and colonial background. We therefore compare colonial with non colonial migrants and within these categories between groups with ‘European’ (Christian) and non-European (Islam, Hinduism) religions. First of all, religion appears to be an important variable. Migrants whose faith has no tradition in Western Europe intermarry at a much lower rate than those whose religious backgrounds correspond with those that are common in the country of settlement. The rate of ethnic endogamous marriages in Western Europe are highest in Hindu and Muslim communities, often regardless if they came as guest workers or colonial migrants. Whereas differences in religion diminish the propensity to intermarry, colour or ‘racial’ differences on the other hand seem to be less important. This is largely explained by the pre-migration socialisation. Furthermore, the paper argues that the attention to institutions, as rightly advocated by Richard Alba and Victor Nee, needs a more refined and layered elaboration. Institutions, often as barriers to intermarriage, do not only emanate from the receiving society, but also—be it less formalized—within migrant communities. Especially religions and family systems, but also organized nationalist feelings, can have a profound influence on how migrants think about endogamy. Finally, strong pressures to assimilate, often through institutionalized forms of discrimination and stigmatization, not only produce isolation and frustrate assimilation (with resulting low intermarriage rates), but can also stimulate assimilation by 'passing' mechanisms. These factors, together with a more comparative perspective, are not completely ignored in the new assimilation theory, but—as this study of Western European intermarriage patterns stresses—deserve to be included more systematically in historical and social scientist analyses.     

The Supreme Array Scripture: A New Interpretation of the Title “Gaṇḍavyūha-sūtra”

This article argues for a new interpretation of the Sanskrit compound gaṇḍa-vyūha as it is used in the common title of the Mahāyāna text the Gaṇḍavyūha-Sūtra.The author begins by providing a brief history of the sūtra’s appellations in Chinese and Tibetan sources. Next, the meanings of gaṇḍa (the problematic member of the compound) are explored. The author proposes that contemporary scholars have overlooked a meaning of gaṇḍa occurring in some compounds, wherein gaṇḍa can mean simply “great,” “big” or “massive.” This general sense is particularly common in the compound gaṇda-śaila (a “massive rock” or “boulder”) and is found in such texts as the Bhāgavata Purāṇa, the Harivaṃśa and the Harṣacarita. Following the discussion of Gaṇḍa, the author examines the term vyūha (“array”) as it is used in the Gaṇḍavyūha-sūtra. The article concludes with the suggestion that a more appropriate translation of the Gaṇḍavyūha-sūtra would be “The Supreme array Scripture.”     

Evaluation of six presumptive tests for blood, their specificity, sensitivity, and effect on high molecular-weight DNA

Luminol, leuchomalachite green, phenolphthalein, Hemastix, Hemident, and Bluestar are all used as presumptive tests for blood. In this study, the tests were subjected to dilute blood (from 1:10,000 to 1:10,000,000), many common household substance, and chemicals. Samples were tested for DNA to determine whether the presumptive tests damaged or destroyed DNA. The DNA loci tested were D2S1338 and D19S433. Leuchomalachite green had a sensitivity of 1:10,000, while the remaining tests were able to detect blood to a dilution of 1:100,000. Substances tested include saliva, semen, potato, tomato, tomato sauce, tomato sauce with meat, red onion, red kidney bean, horseradish, 0.1 M ascorbic acid, 5% bleach, 10% cupric sulfate, 10% ferric sulfate, and 10% nickel chloride. Of all the substances tested, not one of the household items reacted with every test; however, the chemicals did. DNA was recovered and amplified from luminol, phenolphthalein, Hemastix, and Bluestar, but not from leuchomalachite green or Hemident.     

Illumination,Imagination, Creativity: Rājaśekhara,Kuntaka, and Jagannātha on <Emphasis Type="Italic">Pratibhā</Emphasis>

Sanskrit poeticians make the visionary faculty of pratibhā a necessary part of the professional poet’s make-up. The term has a pre-history in Bhartṛhari’s linguistic metaphysics, where it is used to explain the unitary perception of meaning. This essay examines the relation between pratibhā and possible theories of the imagination, with a focus on three unusual theoreticians—Rājaśekhara, Kuntaka, and Jagannātha Paṇḍita. Rājaśekhara offers an analysis of pratibhā that is heavily interactive, requiring the discerning presence of the bhāvaka listener or critic; he also positions pratibhā in relation to Bildung (vyutpatti) and practice. For Kuntaka, pratibhā, never an ex nihilo creation by a poet, serves as the basis for the peculiar forms of intensified insight and experience that constitute poetry; these may also involve the creative scrambling and re-articulation of the object in terms of its systemic composition. At times, Kuntaka’s pratibhā comes close to a strong notion of imaginative process. But the full-fledged thematization of the imagination, and of pratibhā as its support and mechanism, is best seen in the seventeenth-century debates preserved for us by Jagannātha. A link is suggested between the discourse of poetic imagination in Jagannātha and similar themes that turn up in Indo-Persian poets such as Bedil.     

Preventing Homelessness for System‐Involved Youth

Too many youth and young adults find themselves on the streets, couch‐surfing with friends, in emergency shelters or worse, after exiting the child welfare and juvenile justice systems. In some circumstances, youth have had court hearings until their exit from the legal system, but those hearings have not focused on long‐range plans of youth and emergencies youth may encounter. In other circumstances, there has been little or no planning prior to discharge, especially for young people who leave the juvenile justice system. Courts can and should prevent, alleviate or end youth homelessness for youth who appear before them through strategies that are enumerated in the recently‐passed NCJFCJ resolution. This article expounds on three of these strategies – coordinating transition and re‐entry plans, insisting on effective legal representation of youth, and utilizing sound judicial leadership. It also describes the concurrent efforts of the Coalition for Juvenile Justice and the American Bar Association's Homeless Youth Legal Network to remove legal barriers and improve outcomes for youth and young adults experiencing homelessness.     

Best practices for structuring a family court parenting plan evaluation under the 2022 AFCC Guidelines

Evaluation appointment orders provide enforceable scaffolding for conduct of family court parenting plan evaluations, and use of the evaluator's reports, feedback, file, and testimony. Unlike a contract, a stipulated or adjudicated appointment order is directly enforceable by the family court. It unambiguously positions the evaluator as the family court's appointee – answerable directly to the court and, in some jurisdictions, protected by quasi-judicial immunity from damages claims. A well-crafted appointment order governs the roles and expectations of the court, the evaluator, the parties, the lawyers, and the collateral witnesses. An appointment order mandates the legal duties, rights, powers, and responsibilities of the professionals, the parties, and the collateral witnesses. At minimum, an appointment order articulates the legal basis for the appointment, the purpose and scope of the evaluation, compensation of evaluator, and the duty of the parties to participate in the process. A written evaluation protocol or procedures statement discloses in advance the methods of investigation and assessment that the evaluator intends to use. Together, the appointment order and written protocol help the evaluator, lawyers, parents, and judge manage the complexity of the evaluation process.     

Monks Who Have Sex: Pārājika Penance in Indian Buddhist Monasticisms

In the study of Buddhism it is commonly accepted that a monk or nun who commits a pārājika offence is permanently and irrevocably expelled from the Buddhist monastic order. This view is based primarily on readings of the Pāli Vinaya. With the exception of the Pāli Vinaya, however, all other extant Buddhist monastic law codes (Dharmaguptaka, Mahāsāṅghika, Mahīśāsaka, Sarvāstivāda and Mūlasarvāstivāda) contain detailed provisions for monks and nuns who commit pārājikas but nevertheless wish to remain within the saṅgha. These monastics are not expelled. Rather, they are granted a special status known as the śikṣādattaka. In this paper I explore the rules. concerning pārājika penance and the śikṣādattaka with specific regard to monastic celibacy. Given that five out of six extant law codes recognise this remarkable accommodation to the rule of celibacy, I argue that we must look to Vinayas other than the Pāli Vinaya if we are to arrive at a nuanced and representative view of Indian Buddhist monasticism.

Grant me chastity and continence, but not yet. Augustine of Hippo (354–430 C.E.)

     

What similes in Sāṃkhya do: a comparison of the similes in the Sāṃkhya texts in the Mahābhārata, the Sāṃkhyakārikā and the Sāṃkhyasūtra

In Sāṃkhya similes are an important means to communicate basic philosophical teachings. In the texts similes are frequently used, especially in the Sāṃkhya passages in the Mahābhārata, in the Sāṃkhyakārikā and in the Sāṃkhyasūtra. This paper compares the similes in these three texts and analyses changes in the philosophy as revealed in the similes. A comparison of the similes of Sāṃkhya texts produced over more than one thousand years reveals changes in the emphasis in this philosophical system. The purpose of the similes in the Sāṃkhya passages of the Mahābhārata is to produce an intuitive understanding of the separateness of puruṣa and prakṛti. The similes are designed to lead the listener to understand this basic dualism. In the Sāṃkhyakārikā the most difficult issues are the relationship between prakṛti and puruṣa and the idea of prakṛti working for the salvation of puruṣa. One whole chapter of the Sāṃkhyasūtra is devoted to similes.