A Criticism of the International Harm Principle

According to the received view crimes like torture, rape, enslavement or enforced prostitution are domestic crimes if they are committed as isolated or sporadic events, but become crimes against humanity when they are committed as part of a ‘widespread or systematic attack’ against a civilian population. Only in the latter case can these crimes be prosecuted by the international community. One of the most influential accounts of this idea is Larry May’s International Harm Principle, which states that crimes against humanity are those that somehow ‘harm humanity.’ I argue that this principle is unable to provide an adequate account of crimes against humanity. Moreover, I argue that the principle fails to account for the idea that crimes against humanity are necessarily group based. I conclude by suggesting that the problem with May’s account is that it relies on a harm-based conception of crime which is very popular, but ultimately mistaken. I submit that in order to develop an adequate theory of crimes against humanity we need to abandon the harm-based model and replace it with an alternative conception of crime and criminal law, one based on the notion of accountability.     

现代风险社会中危害性原则的角色定位

功利制约正义的国权主义刑法思想会使刑法成为控制风险与不安全性的重要工具,促使危害性原则内涵不断膨胀,刑法的社会机能随之扩张并使危害性原则的人权保障机能与批判机能逐渐丧失。在现代风险社会语境下,以保障人权、自由为本位的人本主义刑法理念仍然是立法与司法的基本准则。风险的控制应该是有梯度的,危害性原则必须与刑法谦抑思想并用才能成为刑事立法的指导原则;必须在形式的构成要件框架内,在形式理性优先于实质理性的前提下才能成为刑事司法的指导原则。     

法律中先占原则的适用及限度

先占是一种重要的私人财产权获取方式和原则.其合理性在于先占人的资格比较容易识别,且一般蕴含着尊重劳动及征得他人同意、先占人与其他人之间存在着明示或默示契约之意.通过加利福尼亚淘金热中先占原则的历史变迁,阐明了不同变量对先占原则的影响,并进一步说明先占原则的有效性取决于资源的状况、先占者与他方的力量对比、是否需要合作、信息费用、权利的维护成本等诸多因素.权利冲突现象的广泛存在,更进一步解释了现代社会先占原则式微的原因.但市场定价制度的非精确性,却使先占原则以“排队伦理”的形式获得了新生.     

比例原则的适用范围与限度

比例原则是对限制公民权利的国家权力的限制,其适用需要满足一定的前提条件。比例原则保护的是一种相对权利,审查的是国家权力行使的合理性问题,不可克减的公民权利以及目的正当性不在其适用范围内。比例原则具有独特的内涵和价值功能,没有必要也不应当在民法、刑法等部门法中普遍适用,理应回归行政法这一固有领地。为适应国家任务的多样性,比例原则在关注侵益行政行为的同时,也应当向授益行政行为和互益行政行为的领域拓展,但"最小侵害"的严格标准和"法益均衡"的目标追求,决定了其主要用于规制常态意义下的行政权力行使,在紧急状态中的适用要受到一定限制。     

冒犯型犯罪的根据:伤害原则对法益保护原则的一次超越——兼论犯罪的本质

限制刑罚权是法益保护原则的重要机能，但该原则却很难解释冒犯型犯罪的正当化根据。费因伯格认为，给他人造成的不良心理感受是冒犯行为被犯罪化的根据所在。不良心理感受易受到利益主体主观的影响，因此，欲获得刑法的保护，亟需将该利益进化成权利。然而，能够上升到权利的利益只能局限于最低的安宁权和一般性的利益。只有他们才能获得刑法的保护。这就是伤害原则解读冒犯型犯罪的根据所在。尽管如此，面对亲属间通奸罪，伤害原则与法益保护原则一样，也一筹莫展。     

诚信原则法律修正功能的适用及限度

在处理具体规则与诚信原则的适用关系时,通常依据具体规则优先的法律适用原则。然而,在具体规则与诚信原则发生冲突时,诚信原则应当如何适用,我国学界尚欠缺深入研究。当适用具体规则与诚信原则相抵触,并于个案中产生难以容忍的不公正结果时,诚信原则具有法律修正功能。诚信原则法律修正功能的实质并非是通过修改法律以在现行法之外建立另一套法律制度,而仅是在具体规则中为某些特殊案件创设但书,使之区别于适用具体规则的正常情况。在判断适用具体规则所产生的结果是否公正时,法官不能仅凭法政策或自己的法感,而须依据现行法秩序所蕴含的评价对诚信原则进行价值填充,以立法者的视角作出判断。在这一意义上,诚信原则的法律修正功能仍受现行法秩序的约束,并未僭越立法权。在适用方法上,诚信原则的法律修正功能规制的是制度滥用,填补的是隐藏法律漏洞,在方法论上须遵循"目的性限缩-法律修正"这一适用顺序。但是,诚信原则的法律修正功能不适用于"法政策漏洞"和"立法者有意沉默"两种情形。     

民警开枪射击法律界限探讨——基于比例原则的分析

民警开枪射击的法律界限,就是必须遵守比例原则,满足妥当性、必要性和均衡性的要求。在警察使用枪支的时候,警察的强制力最容易侵犯到公民的健康自由权和生命权。所以我国必须修订《警察法》,使比例原则法律化,有效规范警察行政执法和刑事侦查,而且必须制定《中华人民共和国人民警察使用警械和武器法》,使《条例》这种行政法规上升到法律的高度,从而为民警开枪射击确定法律界限,使警察权和公民的基本人权得到平衡。     

Rethinking The Ends of Harm

In The Ends of Harm, Victor Tadros claims that the general justifying aim of the criminal law should be general deterrence. He also takes seriously that we cannot use people as a means, and thus he argues that we may only punish people in the name of general deterrence who have a ‘duty’ to suffer. Tadros claims that this duty arises as follows: An offender initially has a duty not to harm the victim. If the offender violates that duty, the offender still has a duty to stop the harm from occurring (so that, for example, an offender would have to jump in front of his own bullet). And if the harm does occur, then the offender has a duty to rectify that harm. This duty to rectify, argues Tadros, requires the defendant not only to compensate the victim but also to protect the victim to the extent that he would have been able to have been harmed to prevent the threat from occurring. Tadros further advances intricate arguments for why the state may therefore punish the offender to protect other potential victims to the extent of the offender’s duty to rectify. This symposium contribution seeks to explore three problems with Tadros’ analysis, ultimately arguing that Tadros’ theory fails on its own terms. First, attempts present a substantial problem for Tadros’ regime because attempts do not give rise to duties to prevent harm because there is no harm to be prevented. Tadros’ attempt to account for attempts, as completed offenses of diversions of security resources, ultimately leads to punishments that bear little resemblance to the crime attempted. Such a wildly counterintuitive result creates problems for a regime premised on general deterrence, which must be understood and respected. Second, Tadros’ regime will often exempt the rich from suffering criminal punishment. Tadros claims that duties to prevent harms from occurring (by jumping in front of bullets) are only enforceable when compensation will be inadequate. However, affluent offenders may be able to fully compensate. Moreover, since the scope of the duty to suffer will be determined by what remains of the duty after the victim is compensated, affluent offenders will be able to compensate more and thereby suffer less. Again, the actual sentences will thereby bear little resemblance to the rationale for criminalization, thus threatening the deterrent message of the law. Moreover, a system that exacerbates distributive inequalities will not achieve public respect. Third, Tadros cannot justify taking the duty that the defendant owes to the victim and forcing the victim to transfer this asset to the state. In his quest to articulate a theory that does not impermissibly use defendants, he ultimately endorses a theory that impermissibly uses their victims. He thus fails to achieve the very goal he sets for himself, which is to achieve general deterrence without impermissibly using anyone.     

The Limits of Senatorial Courtesy

Because of senatorial courtesy, scholars typically assume that presidents defer to home state senators from their party when selecting judges for the federal courts. We challenge this view, arguing that presidents face structural incentives that encourage them to consult broadly with senators across the partisan and ideological spectrums in choosing nominees. Using new data on the fate of judicial vacancies on the federal district courts between 1947 and 1998, we show how institutional and political forces increase interested senators' leverage in choosing federal judges. Senatorial courtesy, we conclude, has its limits, given presidents' incentives to consult with institutionally empowered senators in selecting nominees.     

The Preference for Indirect Harm

We presented subjects pairs of hypothetical scenarios. The action in each scenario harmed some people in order to aid others. In one member of the pair, the harm was a direct result of the action. In the other member, it was an indirect byproduct. Subjects preferred the indirect harm to the direct harm. This result could not be fully explained in terms of differences in judgments about which option was more active, more intentional, more likely to cause harm, or more subject to the disapproval of others. Taken together, these findings provide evidence for a new bias in judgment, a tendency to favor indirectly harmful options over directly harmful alternatives, irrespective of the associated outcomes, intentions, or self-presentational concerns. We speculate that this bias could originate from the use of a typical but somewhat unreliable property of harmful acts, their directness, as a cue to moral evaluation. We discuss the implications of the bias for a range of social issues, including the distinction between passive and active euthanasia, legal deterrence, and the rhetoric of affirmative action.     

The Limits of Theoretical Integration

The integration of theoretical knowledge is often seen as the ultimate goal of research activity in the social sciences. In this article I explore limits in the form and degree to which our knowledge can be integrated, as well as limits in the worth and desirability of some kinds of integration. Most of the analysis depends on drawing two kinds of distinctions in theoretical activity—between theoretical and metatheoretical work and among different types of integration in each kind of work. Using primarily examples from theory and research on justice issues, I articulate three different ways in which work at the theoretical level can be integrated. Each type represents a distinct kind of knowledge development, requires different criteria of evaluation, and involves a varying degree of difficulty to achieve. Nevertheless, each of these types of integration is well worth pursuing. Justice research shows evidence of work involving all three types. Using a somewhat broader range of examples, I also distinguish three different ways in which metatheoretical work might be integrated. Again, each type is quite distinct and should be evaluated in different ways. However, each of these types is significantly more difficult to achieve than any of the types of theoretical integration. Moreover, I suggest that the last metatheoretical type—involving the integration of entire strategies, perspectives or schools of thought—is probably not even a desirable goal. As a consequence of these analyses, I recommend (1) that social scientists in general (and justice researchers in particular) focus most of our attention on one or another of the types of theoretical integration, and (2) that we articulate clearly which type of integration we are pursuing and evaluate our success at the effort using only the appropriate criteria. An earlier version of this paper was presented at the Social Justice Conference in Bremen, Germany, 10–12 March 2005.

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The Limits of Criminal Disenfranchisement

Abstract

This article begins with the assumption that criminal disenfranchisement is at least sometimes theoretically defensible, as a component of punishment. From this assumption, I argue that it is only legitimate in a constrained set of cases. These constraints include: implementing disenfranchisement only for serious crimes; tying disenfranchisement to both the electoral cycle and to the length of imprisonment imposed for an offence; and assessing a background condition of sufficient justice present within the state that wishes to disenfranchise. Once these constraints are considered, I argue that there are very few instances in which disenfranchisement is defensible. To prove this, I examine both current disenfranchisement practices and the commonly present factors that undermine the constraints outlined above.     

论法学表达数学化的可能及限度——基于经济学与比例原则的切入

从法律行为与经济学的定义及其实质来分析,法律行为一定是经济行为。由于经济学能够通过边际分析使其自身表达数学化,因而,边际分析也应能成为法学表达数学化的桥梁。任何法律价值的实现,都必然要受到资源稀缺的量化约束,因此,法律价值的通约与权衡成为必要与可能,人权与正义也不例外。当今时代被称为"比例时代",比例原则及其三个子原则既是经济学原则,也是法学强烈要求表达数学化的内在需要。法学表达数学化的可能及限度受效率原则的约束。法学表达数学化能够提高法学的科学性,技术性展示价值观分歧的实质、剔除语义分析的模糊以及修辞对非理性的依赖并遏制变量处理的任意,剔除法学中伪问题,进而寻求更多的社会共识,同时为大数据进入法学提供必要的基础与准备,尽可能对行为进行预测与规制,提高社会发展效率,促进人们更幸福的生活。     

The Limits of Critique and the Forces of Law

Three recent publications evidence a growing interest in critical jurisprudence with materiality, technology, affect and atmosphere. These approaches pose fundamental challenges to existing traditions within legal critique, spurning a focus on the ideology of legal reasoning and exploring instead the unique practices through which the law binds subjects through material, affective and atmospheric manipulations. Through either Andreas Philippopoulos-Mihalopoulos’s ‘lawscape’ or Kyle McGee’s ‘jurimorphs’ these innovative theoretical projects pluralise the ‘forces’ which account for the law’s normativity, disavowing the notion that such forces can be reduced either to a transcendental form (like sovereignty) or to notions of structural or symbolic violence. These approaches address a ‘democratic deficit’ in legal philosophy that has generally excluded the realm of the material in its theorising and allows us to attend to the multiple forms that allow for the passage of law.     

跨界损害责任制度的新发展

跨界损害责任是国际责任制度的一个重要问题。2001年《关于预防危险活动的跨界损害的条款草案》和2006年《关于危险活动造成的跨界损害案件中损失分担的原则草案》两个文件标志着联合国国际法委员会的这一编纂工作告一段落。该种责任与传统国家责任之间的关系、两个草案的性质、主要内容及存在的问题,以及其对国际法中责任制度的影响值得探讨和分析。     

The Limits of Legal Pluralism in the Roman Empire

The Roman empire was legally pluralistic. But what exactly does this entail in concrete terms? With the growth in historical studies of legal pluralism in the Roman empire, some significant differences in approach have emerged. This article tests and clarifies some of the limits in the current ‘legal pluralism’ conceptual landscape, focussing on disputes and dispute resolution. It is argued that a clearer distinction should be drawn between ‘normative’ and ‘jurisdictional’ pluralism, though both approaches still raise certain conceptual problems. The place of disputes within the family within this wider institutional picture is then taken as a case study in the final part of the paper, and it is suggested that while family disputes can evidence ‘legal pluralism’ in the ‘norms’ sense, there is less to suggest that there were a multitude of officially sanctioned legal fora available for resolving family disputes. As a result, many went beyond the law. This has wider implications for the study of legal pluralism in antiquity and the problem of integrating alternative dispute resolution (ADR) into the pluralistic picture.