Puzzles on Defending others from Aggression

We all agree on the justification of defending ourselves or others in some situations, but we do not often agree on why. Two main views compete: subjectivism and objectivism. The discussion has mainly been held in normative terms. But every theory must pass a previous test: logical consistency. It has recently been held that, at least in the case of defending others from aggression, objective theories lead, in some situations, to normative contradiction. My aim is to challenge the idea that only objective theories have this uncomfortable feature. In fact, any plausible theory justifying the defense of others, whether subjectively or objectively, can lead to situations of normative inconsistency. Therefore, the logical test is not the most fitting one for choosing between different theories of private defense.     

垄断行业反垄断问题研究：基于《反垄断法》视角

在《中华人民共和国反垄断法》（以下简称《反垄断法》）对垄断行业的规范中,面临着“合理’’与“不合理”的垄断区分问题,《反垄断法》与行业法规的重叠问题,管制与反垄断的冲突问题,以及反垄断理论的选择问题。必须以成本收益分析构建垄断行业之垄断评价体系,选择、构建适合我国国情的反垄断理论框架,明确反垄断法与行业管制的界限,通过司法指南把反垄断法转化为企业市场行为的简明行为准则。     

处分原则之理论依据新论

德国、日本及我国台湾地区学者一般认为处分原则的依据是私法自治原则。而我国大陆诉讼法学界对于处分原则理论依据的阐释从上世纪80年代初到现在则经历了一个微妙的变化过程,逐渐从社会主义民主原则以及"国家干预私法"的理论演变为民事权利的可处分性,并趋向回归到私法自治原则。但实际上从法学的多维视角观察,处分原则的依据绝不仅限于私法自治原则。法理法学上的权利主体理论、自然法观念与自由主义思想,宪法学上的宪政原理、法治国家与人权保障理论,民事实体法上的公私法划分与契约自由理论以及民事程序法自身的诉讼目的、诉讼价值以及程序主体性理论等均为确立处分原则的理论依据。     

Secularism before the Strasbourg Court: Abstract Constitutional Principles as a Basis for Limiting Rights

The justification for the restrictions on religion inherent in secularism is the subject of lively debate in constitutional and political theory. As a rights‐focused text, the ECHR struggles to accommodate constitutional principles such as secularism whose aims and justifications may go beyond the protection of the rights of others and include abstract goals such as upholding the religious neutrality of the state. Rights alone cannot provide an adequate account of the relationship between religion, state and law, and in Ebrahimian v France, the Strasbourg Court rightly reaffirmed that secularism and strict neutrality can be in harmony with the values of the Convention. However, the Court needs more clarity about the reasons for this stance and to be vigilant in its protection of private autonomy so that the use of abstract principles to restrict religious expression does not give excessive latitude to states to restrict individual autonomy and minority rights.     

Law and Emotion: A Proposed Taxonomy of an Emerging Field

Scholars from diverse fields have begun to study the intersection of emotion and law. The notion that reason and emotion are cleanly separable—and that law rightly privileges and admits only of the former—is deeply engrained. Law and emotion scholarship proceeds instead from the belief that the legal relevance of emotion is both significant and deserving of (and amenable to) close scrutiny. It is organized around six approaches, each of which is defined and discussed: emotion-centered, emotional phenomenon, emotion theory, legal doctrine, theory of law; and legal actor.Drawing on the analytic value of the proposed taxonomy, any exploration of law and emotion should strive to identify which emotion(s) it takes as its focus; distinguish implicated emotion-driven phenomena; explore relevant and competing theories of the emotions; limit itself to a particular type of legal doctrine; expose underlying theories of law; and make clear which legal actors are implicated. Directions for future research are discussed and cross-disciplinary collaboration encouraged.

动物法律地位刍议——私法视野下的分析

在动物法律地位问题上,存在"肯定论"和"否定论"两种观点。"肯定论"的观点在认识论上忽视了动物不可能具有道德判断能力的事实,在本体论上曲解了法律主体据以享有权利的"内在价值"的含义,在私法理论上带来一系列的难题,在法律制度上缺乏可操作性,故不足取。"否定论"中的"义务论"观点则认为,需要人类保护的动物乃是人类的保护义务的客体。"义务论"既可以达到"肯定论"拟保护动物的目的,又完全不与现有的法律理论和制度相冲突,还具有可操作性,所以是解决动物法律地位问题的最佳方案。     

Innocence Lost: A Problem for Punishment as Duty

Constrained instrumentalist theories of punishment – those that seek to justify punishment by its good effects, but limit its scope – are an attractive alternative to pure retributivism or utilitarianism. One way in which we may be able to limit the scope of instrumental punishment is by justifying punishment through the concept of duty. This strategy is most clearly pursued in Victor Tadros’ influential ‘Duty View’ of punishment. In this paper, I show that the Duty View as it stands cannot find any moral distinction between the permissible punishment of the guilty and the permissible punishment of the innocent in extreme circumstances, therefore undermining one the key pillars of its intuitive appeal. I canvass several ways to respond to this problem, arguing that a rights (or claims) forfeiture theory which employs the distinction between rights forfeiture and rights infringement (or claims forfeiture and infringement) is the best solution.     

The Development of System Justification in the Developing World

System justification theorists have proposed that under some circumstances ‘‘people who suffer the most from a given state of affairs are paradoxically the least likely to question, challenge, reject, or change it’’ Jost et al. (2003). These claims are contrary to theories that suggest that group members seek to enhance their self-interest or group-interest (e.g., realistic group conflict theory, rational choice models). The present study, conducted in one of the poorest countries in the world, Bolivia, tested if even the most impoverished people of the world will endorse beliefs justifying the status quo. A survey of 356 Bolivian school children found that low-status children endorse beliefs in the effectiveness of government in meeting the people’s needs more than their high-status counterparts. The results suggest that system-justifying beliefs are endorsed by low-status group members in even the most extreme cases of poverty, and even among the youngest politically aware members of society, and they raise questions about the capacity for true social change in those parts of the world that may need it the most.

Means and Capabilities in the Discussion of Distributive Justice*

Abstract. Dworkin's equality of resources can be interpreted as a proposal that integrates distributive criteria taken from both equality of means and equality of capabilities, and overcomes the risks of subjectivism, overrigidity and perfectionism inherent in theories of welfare, means and capabilities respectively. This can be achieved by concentrating on arrangements of justice working within the parameter of equality of resources that equalize capabilities at a level of minima, thus avoiding the perfectionist risk and, once the threshold that ensures autonomous subjects is passed, ruled by criteria taken from theories of means. In such a task, the concept of moral person will be used as the criterion for determining the threshold of autonomy, and not only will it allow for the discrimination between the different circumstances that make the application of distributive criteria possible, but it will also specify the circumstances in which it is possible to attribute responsibility to an agent.     

Conflicts of Rights and Action-Guidingness

In this paper, we raise two points. First, any rights-based theory should provide a method by which to guide reasoning in addressing conflicts of rights. The reason, we argue, is that these theories must provide guidance on what should be done. Second, this method must contain two key recommendations: (1) We should try to find a deliberative mechanism through which none of the rights is simply eliminated from the scene; (2) these rights may be balanced against each other to define which right should prevail, but without considering non-rights-interests as if they were rights in the process. These recommendations instantiate two crucial principles that underlie our common intuitions on rights, namely, the principle that rights deserve equal respect and the principle that rights should be taken seriously.     

中外合营有限责任公司控制股东地位之形成及非控制股东权利之保护

中外合营有限公司的股东一般清楚地分为两派 :中方和外方 ,这和一般的公司股东各自代表自己的利益而有所不同 ,在中方和外方两派股东的权利冲突中 ,控制股东就可以利用自己的优势地位来获取特别的利益 ,通过法律制度建设和公司自治来保障非控制股东之权利应属必要。     

Attribution styles and attitudes toward capital punishment for juveniles,the mentally incompetent,and the mentally retarded

This study used attribution theory to explain respondents' levels of support for the death penalty for juveniles, the mentally ill, and the mentally retarded via the administration of a quasi-experimental factorial survey to 697 subjects who were called for jury service. The results indicate that the respondents with dispositional attribution styles were significantly more likely to recommend a death sentence than were those with situational attirbution styles. Moreover, the study found that the effects of a large number of the “known correlates” of support for the death penalty were fully or substantially mediated by attribution theory measures. The substantive, theoretical, methodological, and legal/policy implications of the study are discussed.     

论以普遍意志为根本的权利观

权利观是任何法律思维都无法摆脱的根本构思。权利观的核心是权利的本质。围绕“意思”范畴展开的权利意志论,与以利益作为权利的本质的学说,更能突出权利所应具有的主体性、普遍性及防御性。权利的主体性体现在主体对客体的排他性支配以及主体之间的平等;权利的普遍性则说明权利应当来自普遍意志并以形式理性表现;而权利的防御性则反映出从权利意志论的角度最有助于防范公权力对于权利的干预。以普遍意志为根本的权利观就不仅于民法学具有意义,更于中国法制的进步具有深远意义。     

论个人储蓄存款账户的物权性质

个人储蓄存款的性质在现有法律规定上存在矛盾和冲突,在法学理论界也存在"物权说"、"债权说"的争议,因此,个人储蓄存款账户的法律性质成为一个亟待研究的理论问题,也成为实践中需要协调一致、消除制度冲突的一个问题。在重新反思和界定物权的基础上,笔者认为:个人储蓄存款是一种具有债权性质的物权,或者说客户和银行之间是一种相互的从属物权关系。     

Family violence and depressive symptomatology among incarcerated women

This study examines the potential association between witnessing parental violence as a child and later adult depressive symptomatology within a population that has received limited attention in the scientific literature, namely, incarcerated women. The Conflict Tactics Scale and the Center for Epidemiological Studies Depression Scale were administered to 60 women incarcerated in a maximum security prison in North Carolina. A majority of the women reported that they had witnessed verbally aggressive or physically violent interactions among the adult members in their families. Seventy percent of these women suffered from clinically relevant levels of depressive symptomatology. Stepwise multiple linear regression analysis revealed that increasing levels of reasoning conflict resolution strategies used in the women's families of origin were associated with decreasing levels of depressive symptomatology of the women, whereas increasing levels of physically violent conflict resolution strategies were associated with increasing levels of depressive symptomatology.     

A theory of executive dominance of congressional politics: the committee system in the Brazilian chamber of deputies

This article analyses the Brazilian Chamber of Deputies committee system using rational choice theories developed originally for the US Congress. We suggest that pure versions of these theories are unable to explain Brazilian committee politics, and point out the necessity of building a specific theory that takes into account key institutional characteristics which give the Brazilian Executive considerable power to control the legislative process to assure outcomes consistent with presidential preferences. We demonstrate that committees in Brazil operate to some degree as agents of the executive. For this reason, we call it the Theory of Executive Dominance.     

The Structure of Conflicts of Fundamental Legal Rights

In recent years, the most widespread doctrine about the conflicts between fundamental (usually constitutional) legal rights could be summarized in the following three main theses: (1) The elements in conflict are legal principles, as opposed to legal rules; (2) Those conflicts are not consequences of the existence of inconsistencies or antinomies between the norms involved, but rather depend on the empirical circumstances of the case. In other words, the norms are logically consistent and the conflicts are not determinable a priori or in abstracto, but only in concreto; and (3) The classical criteria for solving conflicts between norms, such as lex superior, lex posterior and lex specialis, are not suitable to solve conflicts among fundamental legal rights. Indeed, they require a specific method known as ‘weighing and balancing’. Although all three theses could be (and indeed have been) regarded as problematic, in this paper I address mainly the second one. I try to show that there is room for a tertium genus between antinomies (deontic inconsistencies) and conflicts caused by strict empirical circumstances that I call ‘contextual antinomies’. There are situations in which the norms involved are not inconsistent but the conflict arises for logical reasons. My thesis is that many conflicts between fundamental legal rights fall in this category. I offer, in an appendix, a proposal of formalization of this kind of conflict and the elements involved in it.     

<Emphasis Type="Italic">Random Activities Theory</Emphasis>: The Case for ‘Black Swan’ Criminology

In the United States, infamous crimes against innocent victims—especially children—have repeatedly been regarded as justice system “failures” and resulted in reactionary legislation enacted without regard to prospective negative consequences. This pattern in part results when ‘memorial crime control’ advocates implicitly but inappropriately apply the tenets of routine activities theory, wherein crime prevention is presumed to be achievable by hardening likely targets, increasing the costs associated with crime commission, and removing criminal opportunity. In response, the authors argue that academic and public policy discourse will benefit from the inclusion of a new criminological perspective called random activities theory, in which tragic crimes are framed as rare but statistically inevitable ‘Black Swans’ instead of justice system failures. Potential objections and implications for public policy are discussed at length.     

Comments on Illegal War and Illegal Conduct: Are the Two Related?

This article examines whether there is a link between the legality or otherwise of an armed conflict under jus ad bellum and the subsequent conduct of the campaign under jus in bello. This is done by comparing two conflicts where the legality was not in serious dispute, the Falklands/Malvinas conflict and the Iraq War 1990–1991, and three where the legality has been questioned, Kosovo 1999, the ‘global war on terror’ and the Iraq War 2003. In looking for a common link, the author is drawn away from concerns over the jus ad bellum to doubts over the content of the relevant law governing the conduct of hostilities. Uncertainties in the law have occurred both from the extension to non-international armed conflict of ‘Hague law’, traditionally applicable only in international armed conflicts, and the overlap between human rights law and the law of armed conflict. The author concludes that there is a danger that the balance between military necessity and humanity may be disturbed so that the law will become impracticable in the cauldron of conflict to the detriment of all, soldier and civilian alike.

     

台湾地区大学自治和法律保留之关系

大学自治和法律保留的关系在台湾地区一直充满争议,这种争议源于制度保障说和授权说之间的冲突,前者将自治权视为宪法上的分权而不从属于法律,后者则要求严格适用法律保留,要解决冲突不能仅仅以制度保障说来代替授权说,还需要控制法律对大学事务的规范密度。台湾地区的经验和教训对推动大陆大学法治建设具有重要借鉴意义。