试析保守主义的经验特征对公共政策决策的启示——以“理性模式”和“渐进模式”为例说明

作为西方社会一种主流政治思潮的保守主义,显著地表现出一种经验性特征,这一特征对现实的政治生活有很多有益的启示。本文以公共政策决策中的＂理性模式＂和＂渐进模式＂为例说明其对公共政策决策的一些启示。     

作为实践理性的法律

理性是法理学的永恒主题。现代法理学的理性话语经历了从“理性法”向“法律理性”的转向,这实际上是法理学从理论理性向实践理性的转向。法律与实践理性的关系体现为“法律是实践理性的体现”、“法律是行为的正当理由”、“法律是实践性信息”等命题。同时,作为实践理性的法律也具有客观性,其客观性基础在于实践商谈。     

论哈贝马斯的法律与交往理性

哈贝马斯基于这样一个出发点:一个更加世俗或祛魅的社会,在元社会保障理论缺失的情况下,规范秩序如何可能他另避蹊径建构法的商谈论,首先拿在理性法传统中占重要地位的实践理性开刀。他扬弃了康德的实践理性,用交往理性取代了实践理性。通过论述法律与交往理性的关系来论证为什么交往理论为法的商谈论提供了合适的语境。     

司法理性之语义分析

司法理性的主要语义是指法官的理性，另一种语义是指司法制度的合理性。对司法理性的特征进行研究有助于对概念的进一步界定：目的性是司法理性的首要特征，确定性是司法理性的价值取向，实践性是司法理性的本质，保守性是司法理性的内在特征，论证性是司法理性的外在特征。     

法律论证中的逻辑理性

法律论证中的逻辑理性,是指追问以及追求法律的逻辑性或法律在逻辑上的合理性。逻辑理性在法律论证中有重要的作用,它既可以为法律思维提供基本的思维框架和模式,具有建构性功能;也可以为法律论证提供公正的平台。但是,逻辑理性在法律论证中也有一些局限性,这说明在法律论证中,只有逻辑理性是不够的：还需要实践理性和价值理性的补充。它们三者既有联系又有区别,它们的关系体现了合理与合法的关系,其有机统一对构建以法治为基础的和谐社会有积极的意义。     

检察机关与媒体关系的理性审视与重构

随着我国民主化、法制化进程的不断深入，媒体对检察机关的法律监督活动越来越关注，从报道的内容看，既有褒扬，也有针砭。特别是当有的检察院对一些突发事件或群体性事件处置不当，以及检察人员发生违纪违法行为等情况时，部分媒体则更会将舆论的关注焦点直接指向检察机关，从而导致舆情危机的发生。那么，检察机关和媒体之间究竟应保持一种什么样的关系？这正是当前政治文明社会和信息化时代值得我们积极应对和深入思考的问题。一、检察机关与媒体正面关系的多维解读检察机关与媒体的关系具有多维性，只有对其进行多角度的透视和把握，才能更全面和深入地理解两者之间的复杂关系，进而更好地对这种关系进行沟通和协调。笔者试从政治维度、法律维度、工作维度三个视角，解读检察机关与媒体关系的实质，找到双方的切合点，以更加理性地审视和思考检察机关与媒体之间的关系。     

常识与理性（八）：司法理性之逻辑与悖论

基于司法理性之逻辑必然，现代司法在迈向专业化或者职业化过程中，不可避免地存在着贵族化与精英化之内在趋向。其中，专业化程度被认为是引领司法达至“效果最优”的基本要素，但贵族化趋向则被认为是诱导司法走向“悖论”的基本因素-它使得司法很可能被异化为一个远离大众、甚至背离常识的封闭市场。为弥补司法职业理性之缺陷，化解其内在的逻辑“悖论”，有必要在制度安排上为生活理性渗入高度职业化的司法过程设置某种管道或者窗口，使得司法程序、法官质素以及司法判决更具包容性，并为包容性司法之成长创设制度环境。     

民意与司法关系理性解读

一 对于“民意”,《现代汉语词典》的解释是“民众的意愿”。在中国的语言文化中,“民”字被赋予了一种天然的正当性,凡是与“民”字连用的词,如“民生”、“民主”、“民权”、“人民警察”、“人民法院”等似乎也一并“继承”了这种不言自明的正当性。对这一正当性的任何质疑都会被本能地抗拒和下意识地排斥。     

上下级法院间的应然关系之理性回归

《关于规范上下级人民法院审判业务关系的若干意见》（以下简称《意见》）对上下级法院的职权进一步予以优化配置，使上下级法院间的应然关系得以理性回归，对于完善我国的司法审判制度具有重要的理论和实践意义。     

谈法律实践中的逻辑理性

法律实践离不开逻辑理性,概念明确、判断恰当、推理有效的逻辑命题贯穿于法律实践始终。法律的逻辑理性包括法律的明确性、法律的一致性和法律的完备性。     

The database search problem: A question of rational decision making

This paper applies probability and decision theory in the graphical interface of an influence diagram to study the formal requirements of rationality which justify the individualization of a person found through a database search. The decision-theoretic part of the analysis studies the parameters that a rational decision maker would use to individualize the selected person. The modeling part (in the form of an influence diagram) clarifies the relationships between this decision and the ingredients that make up the database search problem, i.e., the results of the database search and the different pairs of propositions describing whether an individual is at the source of the crime stain. These analyses evaluate the desirability associated with the decision of 'individualizing' (and 'not individualizing'). They point out that this decision is a function of (i) the probability that the individual in question is, in fact, at the source of the crime stain (i.e., the state of nature), and (ii) the decision maker's preferences among the possible consequences of the decision (i.e., the decision maker's loss function). We discuss the relevance and argumentative implications of these insights with respect to recent comments in specialized literature, which suggest points of view that are opposed to the results of our study.     

Justice and economic decision making: A model of akrasia

Economics has provided the most rigorous model of decision making. Unfortunately, its severe rationality assumptions rule out psychological conflict. Modifying the standard model to allow for conflicting preferences creates scope for hesitation, doubt, regret, and akrasia. Akrasia, which is doing wrong knowingly, figures prominently in discussions of morality and justice in classical philosophy. The development of a formal model of akrasia along the lines taken in this essay holds the promise of combining the mathematical rigor of economics, the analytical power of philosophy, and the empirical methods of psychology in the study of justice.     

Specifying the direct and indirect effects of low self-control and situational factors in offenders' decision making: Toward a more complete model of rational offending

This paper builds on work by Nagin and Paternoster in which they contend that two recent developments in criminological theory, self-control and rational choice, have been explored separately rather than in conjunction with one another. In their analysis, Nagin and Paternoster found direct effects for variables from each of these theories and called for more research into simultaneous examination of the two. We build on their work by delineating a more highly specified model of rational offending, in which we observe that the research thus far has not examined the indirect effects of low self-control. We believe that this area is grossly underdeveloped and that such an examination is necessary for a more complete understanding of criminal offending. We advance three hypotheses concerning the integration of low self-control into a rational choice framework: (1) that low self-control will have both direct and indirect effects via situational characteristics on intentions to shoplift and drive drunk; (2) that situational characteristics will have direct effects on intentions to deviate, as well as effects on other situational factors; and (3) that a model uniting the effects of low self-control and situational characteristics will provide a good fit to the data. We find support for all these hypotheses and suggest that future theoretical developments will be improved by the integration of low self-control with situational characteristics in a more general model of offending.     

States and the politics of incrementalism: health policy in Wisconsin during the 1990s

Wisconsin officials during the 1990s seemed poised to enact innovative and comprehensive health care reform. During that era, an ambitious, popular, and reform-minded governor led the state. The state had an unusually professional legislature. The state's economy was strong. Even with these advantages, however, the report card on the state's efforts is mixed. The state enacted a fairly modest set of reforms that were financed largely by the federal government and subject to extensive federal oversight. The Wisconsin story thus seems to be about the politics of incrementalism. But while critics of incrementalist politics point out that the number of uninsured continues to grow, the catalytic federalism witnessed in Wisconsin in the 1990s may well be the best model for implementing health care reform.     

A channel model of investment decision: An intertemporal planning approach

The paper considers some theoretical implications of the Oslo-Cairo intertemporal planning model (the channel model). A version of the channel model with private and public investment projects is developed. The optimality properties of the model are derived. It is shown that: (i) Pareto solution can be supported by competitive prices and (ii) a ranking criterion can be constructed in the spirit of cost-and-benefit analysis. The results brings the channel model theoretically in line with the classical resource allocation models.     

A decision support system model for technology transfer

Technology transfer is the process by which technology originating at one institutional setting is adapted for use in another. A major impediment to the implementation of new technologies to assist with mangerial decision-making problems is a lack of communication between the technology and management communities. Development of a tool designed to bridge the technology transfer gap was the goal of this research. The result is a prototype software package which may be used on an interactive computer terminal by a manager for assistance in designing a decision support system (DSS). The four primary research tasks were:

1. Develop a conceptual model of the DSS design process.
2. Select and adapt, or create, appropriate software to mechanize the model.
3. Develop a knowledge base to describe the interactiveness of various organization variables and managerial decision-making needs.
4. Collect and analyze interview data and implement resultant production rules on the model.

Tasks 1 and 2 were accomplished first to establish the feasibility of this effort. An interview instrument was developed for Task 3. And, corporate managers from several firms were interviewed to accomplish Task 4. Using this data, a prototype production rule model (called DECAIDS for DECISION AIDS) was constructed which supports managerial decision-making from the EMYCIN production rule system used at Stanford University. The purpose of this article is to introduce the need for a Decision Support System Model. A complete copy of this research can be obtained through University Microfilms International, 300 N. Zeeb Road, Ann Arbor, Michigan 48106, from the Naval Postgraduate School, Monterey, California 93940, or the Defense Technical Information Center, Cameron Station, Alexandria, Virginia 22314. The title is “An Interactive Decision Support System for Technology Transfer Pertaining to Organization and Management”, 1980.     

Inching toward incrementalism: federalism, devolution, and health policy in the United States and the United Kingdom

In the United States, the recently enacted Patient Protection and Affordable Care Act of 2010 envisions a significant increase in federal oversight over the nation's health care system. At the same time, however, the legislation requires the states to play key roles in every aspect of the reform agenda (such as expanding Medicaid programs, creating insurance exchanges, and working with providers on delivery system reforms). The complicated intergovernmental partnerships that govern the nation's fragmented and decentralized system are likely to continue, albeit with greater federal oversight and control. But what about intergovernmental relations in the United Kingdom? What impact did the formal devolution of power in 1999 to Scotland, Wales, and Northern Ireland have on health policy in those nations, and in the United Kingdom more generally? Has devolution begun a political process in which health policy in the United Kingdom will, over time, become increasingly decentralized and fragmented, or will this "state of unions" retain its long-standing reputation as perhaps the most centralized of the European nations? In this article, we explore the federalist and intergovernmental implications of recent reforms in the United States and the United Kingdom, and we put forward the argument that political fragmentation (long-standing in the United States and just emerging in the United Kingdom) produces new intergovernmental partnerships that, in turn, produce incremental growth in overall government involvement in the health care arena. This is the impact of what can be called catalytic federalism.     

An analysis of the relationship between jurors' personal attributes and decision making

Using a survey from a jury simulation study, this study examines the relationship between jurors' personal and social attributes and their decision-making behavior. The hypothesis is examined whether personal attributes and socialization of jurors have any significant effect on their decision-making behavior. The analysis suggests that personal and/or social attributes of jurors have little, if any, impact on their decision-making behavior. Instead, jury instruction and information about the matter appear to be major influence contributors. Additionally, evidence presented during the trial and knowledge of law have significant effects upon how jurors decide cases and give verdicts. Author's Note: Suman Kakar, Ph.D., is associate professor at Florida International University, College of Health and Urban Affairs. She conducts research in the areas of juvenile delinquency, child abuse, family dynamics, minorities, and the prevention of violence. She has published two books,Child Abuse and Delinquency (1996) andCriminal Justice Approaches to Domestic Violence (1998).