The Limits of the Harm Principle

The harm principle, understood as the normative requirement that conduct should be criminalized only if it is harmful, has difficulty in dealing with those core cases of criminal wrongdoing that can occur without causing any direct harm. Advocates of the harm principle typically find it implausible to hold that these core cases should not be crimes and so usually seek out some indirect harm that can justify criminalizing the seemingly harmless conduct. But this strategy justifies criminalization of a wide range of conduct on the basis of the fear, worry, and anxiety it generates among those who are not the direct victims of the conduct, and thereby undermines the limiting role of the harm principle by permitting the very move it was meant to prevent: the criminalization of harmless conduct on the ground of others’ feelings about it. The best way to avoid this dilemma is to recognize that people have rights, operating independently of the harm principle, to be treated in certain ways just because they are persons. The existence of such rights provides a ground for both criminalizing conduct and limiting the scope of criminalization because these rights point both to conduct that people must be permitted to engage in (regardless of its harmful effects) and conduct that might well be criminalized (though it is not harmful). A complete account of criminal law will therefore require the harm principle to work together with an independent account of rights.     

Rights-based rights

Ronald Dworkin maintains that particular rights, like the right to free speech and the right to own personal property, can be derived from a foundational right, the right to equal concern and respect. This paper questions the tenability of this program for rights-based rights. A right is an individuated moral or political guarantee which confers a specified benefit on each right-holder and which resists conduct that would derogate it. For there to be rights-based rights, both the foundational right and the rights it implies must satisfy this definition. It is doubtful, however, that the right to equal concern and respect should count as a right since the benefits it confers are at best highly controversial and may not be assignable to individuals. But even if we grant that the content of the right to equal concern and respect can be satisfactorily specified, the status of the derived rights remains problematic. The trouble is that the relation between the right to equal concern and respect and the rights it implies parallels the relation between the principle of utility and the rights it may imply. Both of these foundational principles can extinguish derived rights. Consequently, rights dependent on either of these principles are not trumps, and their standing as rights is suspect. I conclude that Dworkin's method of defending rights is inappropriate for the most important of our rights though it may well serve for less critical ones.     

Picturing neuroscience research through a human rights lens: imaging first-episode schizophrenic treatment-naive individuals

In this paper we examine imaging research involving first-episode schizophrenic treatment-naive individuals (FESTNIs) through a legal human rights lens; in particular, the lens of the Additional Protocol to the Convention on Human Rights and Biomedicine Concerning Biomedical Research. We identify a number of ethical and legal hot spots highlighted by the Protocol, and offer a series of recommendations designed to ensure the human rights compatibility of this research. Subsequently, we argue that the lack of reporting on design elements related to ethical concerns frustrates commitments at the heart of the human rights approach, namely, transparency and openness to international scrutiny. To redress this problem, we introduce two norms for the first time: ethical transparency, and ethical reproducibility. When concluding, we offer a set of reporting guidelines designed to operationalize these norms in the context of imaging research involving FESTNIs. Though we will not make this case here, we believe that parallel reporting guidelines should be incorporated into other areas of research involving human subjects.     

行政指导新论

作为一类非强制性的行政作用,行政指导不仅能够与传统的依法行政理念相契合,而且其存在本身即预示着传统行政模式的转型。我国当下应谨慎地实施行政指导,并以过程的公开化、内容的科学化以及救济的类型化为基点,逐步将行政指导纳入法治化的轨道。     

The ethics of the affordability of health insurance

In this essay we argue that the concept of affordable health insurance is rooted in a social obligation to protect fair equality of opportunity. Specifically, health insurance plays a limited but significant role in protecting opportunity in two ways: it helps keep people functioning normally and it protects their financial security. Together these benefits enable household members to exercise reasonable choices about their plans of life. To achieve truly affordable coverage, society must be able to contain the overall cost of health care, and health insurance must be progressively financed, meaning that those who are best able to pay for coverage should pay the largest share. While the recently passed Patient Protection and Affordable Care Act (ACA) falls short on both of these counts, we argue that it makes important contributions toward household affordability through the use of subsidies and regulations. The main shortcoming of the ACA is an insufficient protection against burdensome cost sharing, which we illustrate using several hypothetical scenarios. We conclude with recommendations about how to make opportunity-enhancing expansions to the current coverage subsidies.     

Charter and Enlargement

Current debates about the contents, status, and the future role of the EU Charter of Fundamental Rights should have a stronger 'enlargement dimension': the constitutionalisation of Europe (with the Charter as its key element) and the EU enlargement should be seen as two interrelated (and, possibly, mutually supportive) phenomena rather than as two separate challenges which must be approached one at a time. There are two main aspects to this relationship. First, the Charter may be seen as a yardstick by which the human rights credentials of the candidate states will be tested. Second (the central focus of this article), one may ask whether the candidate states, once involved in the debate about the constitutional future of Europe, will bring any constitutional insights which may affect the articulation of Charter rights. It is argued, against the background of candidate states' recent experience of constitution-making, that these insights should be embraced rather than feared, and that the current member states should resist a temptation of adopting a paternalistic approach towards the candidate states as participants in the European constitutional debate.     

论以人为本的执法原则

以人为本是构建和谐社会的核心,统领经济和社会发展的全局。执法与公民的利益有着最直接、最经常、最广泛的联系。在执法中,应坚持以人为本原则。具体体现在:执法应合乎人性、体现人道、彰显人文关怀、以保障和实现人权为终极目的。要落实以人为本的执法原则,必须加强对具体执法制度的建设。     

论公共场所图像监视与公民权利保护——一个框架性说明

公共场所图像监视是以监视社会理论为理论基础的,是现代科技技术发展在监视领域的呈现和利用。公共场所图像监视限定于公共机构在公共场所设置和运转的图像监视,具有维护公共安全的正当性,同时也呈现对隐私权等公民权利的干预性。作为公权力运作的公共图像监视,在法律保留原理下应当受到法律规范,同时也应契合公益、比例和正当程序等原则要求,并建立体系化的公共图像监视的影响评价、设置、管理、利用、救济等具体制度。在多部地方性公共图像监视规范文件的探索下,我国亟待出台统一的公共场所图像监视法（或条例）。     

个殊化与融贯性:基本文化权益保障的规范内涵论

文化产业与文化事业是基本文化权益保障研究的两类主要视域,但文化事业视域中的相关价值与规范交互性研究往往为学界所忽略。在我国最基本的文化服务事项尚未实现充分平权供给的前提下,该类研究更显其现实意义。有必要在我国基本文化权益保障所依托的公共文化服务体系发生系统变革的背景下,从价值目标与权益事项这两个方面来尝试解构文化事业视域中基本文化权益保障的规范内涵,以提供必要的原理原则层面的概念指引。应根据不同类型的服务供给方而凸显基本文化权益保障的个殊化价值目标,公益性文化单位提供的服务是义务非营利性的,经营性文化单位提供的服务则是激励非营利性的。在此基础上,基于非营利性价值目标所蕴含的社会效益最大化考量,从文化参与权益、文化成果分享权益和文化平等权益这三个方面,来厘清基本文化权益保障的融贯性权益事项。     

Special report on labor and employment. The Department of Labor issues final regulations for the federal Family and Medical Leave Act

The FMLA is a complicated and comprehensive regulatory scheme, and it is impossible to review any but the most basic provisions in this article. The final regulations provide very detailed guidance on such issues as benefits continuation, reinstatement rights, notice requirements, and enforcement measures. Personnel policies and practices must be revised to be consistent with these final regulations, and care must be taken that leave policies do not restrict rights under the FMLA or unintentionally create expanded leave rights. In complying with the FMLA, employers must also keep in mind that there are complex interplays between the federal FMLA, state laws that provide family and medical leave, the Americans with Disabilities Act, and state workers' compensation laws, that can require expert advice depending on the particular circumstances.     

Clashing Rights, the Welfare of the Child and the Human Rights Act

Under the Human Rights Act so far there has been until very recently little judicial or even academic recognition of the difference between resolving clashes of Convention rights and addressing conflicts between utilitarian concerns and such rights. This article has chosen to illustrate that failure of recognition and to consider methods of resolving the conflict between rights, by concentrating on one particular clash of rights – that between media free speech under Article 10 and the privacy of children under Article 8. It argues for presumptive equality for the two rights and for conducting a 'parallel analysis' of their application to the circumstances of a particular case. It contends that therefore the principle that the child's welfare is paramount must be abandoned in its present form, as must the presumptive priority accorded to Article 10 where that principle is not found to apply.     

物权的行政法保护与规制

基于物权的自由属性,现代国家无不对物权提供全面的保护。而物权的社会化,突破了政治国家与市民社会、公法与私法的二元分析框架,其突出表现是行政权大量入侵物权领域,具体包括保护与规制两个层面。因此,物权立法应当立足于私产保护,以社会为本位,把物权置于全部社会关系之中,在规定物权的私法规则的同时,确立物权与行政权的基本关系准则:限制行政征收征用;对合法财产不得处以没收处罚;物权在行政法上的义务应随物权消灭而终止;同时,灵活规定物权登记不作为的物权效果,物权的发展和保护应当向行政法开放,以限制不合理的行政规制,并激活行政法的物权保护功能。     

论非物质文化遗产的私权保护

对非物质文化遗产,有必要在公权保护之外予以私权保护,私权保护有助于非物质文化遗产的保存、保护与弘扬。在具体权利的构建上,应重视精神权利的保护,非物质文化遗产所有人在文化遗产中所蕴含的人格利益需要得到尊重,享有以适当的方式表明非物质文化遗产来源的权利以及保护非物质文化遗产不被不适当使用和贬损性使用的权利;经济权利不宜过分强调,经济权利的授予与权利行使以惠益分享为原则,还应基于利益平衡原则予以一定的限制。     

Shooting from the Hip: Proposed Minimum Rights in Criminal Proceedings throughout the EU

Abstract:  EU action in the field of procedural rights in criminal proceedings was expected. The effects on procedural rights of the EU-propelled increase of repressive, cross-border efficiency with the application of the principle of mutual recognition could not fail to be noticed, and doctrinal opinion has been outspokenly critical of the current predominance of the 'security'-element over the other two in the 'area of freedom, security and justice'. Unfortunately, the proposed Framework Decision on certain procedural rights in criminal proceedings throughout the EU is a double failure: first, the Commission's methodological choices betray a cavalier attitude to the limits of EU competence in this area. Second, it is also a substantive failure in that the rights selected as being 'so fundamental that they should be given priority at this stage' do little to solve the problems actually besetting the application of the principle of mutual recognition in criminal matters.     

人权保障的价值选择--我国刑事诉讼法修改的应然之路

刑事诉讼法所保障的人权应包括个人人权与社会人权两个方面,但是由于司法能力的局限性和价值目标多向性导致个人人权与社会人权难以均衡保护,依据刑事诉讼法的公法性质和人的社会性本质,应在社会人权优先保障的前提下兼顾个人人权.并提出协调社会人权与被告人人权的原则共同抑制原则、动态平衡原则、权衡原则、合法性优先原则.     

Transcending the Means Principle

A robust, if not absolute, prohibition on treating people merely as a means seems to sit at the core of common sense deontological morality. But the principle prohibiting such treatment, the ‘means principle’ (MP), has been notoriously hard to defend: both the subjective, intention-focused and the objective, causal-role-focused interpretations of what it means to use someone as a means face potent objections. In this paper, my goal is not to defend the MP, but to articulate and defend a new principle, which I call the Restricting Claims Principle (RCP), that explains why a person’s causal role is morally significant. The RCP broadens the basic frame of relevant considerations from the MP’s concern with the dyadic relationship between agent and patient to a global balance of patient-claims on an agent. It distinguishes two kinds of patient-claims that weigh in that balance: restricting and non-restricting. In most cases, these can be distinguished as follows: Restricting claims, if respected as rights, would restrict an agent from doing what she could otherwise permissibly do if the claimant (or his property) were absent; non-restricting claims, if respected as rights, would not in that way restrict an agent. Only restricting claims press to make others worse off than if the claimant were absent. The RCP holds that restricting claims must therefore be substantially weaker than non-restricting ones. The claims of those who would be used as a means are non-restricting, while the claims of those who would be harmed as a side effect are restricting. Thus the RCP can account for the same cases (mostly) as the MP, without having to rely on the MP to do so.     

行政法上请求权的理论构造

公法请求权根源于并服务于基础性公法权利,但具备独立实体权利的要素,具有相对的独立性。确保或回复基础性公法权利不受干扰状态的干扰防御请求权和作为受益权核心内容的给付请求权是公法请求权的两种典型形态。公法请求权的确认和保护,对基础性公法权利的实现具有重要意义,只有实现对公法请求权的全面保护,方可实现对基础性公法权利的全面保护。我国应当通过立法和司法的革新措施促进公法请求权的行政法制保护,以提升公法权利的行政法保障水平：一方面,行政立法应当树立对公法请求权予以直接立法确认的理念;另一方面应通过行政诉讼制度的改革促进公法请求权的司法保护。     

印证与自由心证--我国刑事诉讼证明模式

我国刑事诉讼通行“印证证明模式”,将获得印证性直接支持证据视为证明的关键;注重证明的“外部性”而不注重“内省性”。采取印证证明模式的主要原因包括非直接和非言词的审理方式、审理与判定的分离、重复的事实审理需要案件在书面上的可检验性与印证性等。同时,该模式与法官的素质以及占主导地位的认识论有一定的关系。印证证明模式具有易把握与可检验的优点,但刑事司法的现实环境常常使印证要求无法达到。在我国,应当谨慎而适度地借鉴典型的自由心证证明方式,以适应刑事司法的现实需要。     

Quest for the Holy Grail—Is a Unified Approach to the Market Freedoms and European Citizenship Justified?

The case law of the CJEU on the economic free movement of people has departed from the traditional requirement that a nexus must be established between individual free movement and cross‐border economic activity, which has led to an extension of its scope. It is submitted that concerns with the protection of fundamental rights of European citizens are driving this process, and that the CJEU has sought to protect these fundamental rights through the market freedoms in two ways: by arguing that market freedoms are fundamental right themselves, and/or that European Citizenship has changed their normative underpinnings and status. This Article criticises both lines of argument, and defends a third: that the protection of these fundamental rights must be achieved at European level, if at all, through a conception of European Citizenship able to stand on its own.     

英美刑法上的被害人共同责任

在认定行为人的刑事责任时,英美刑法传统上坚持"不得谴责被害人"的原则,但这一原则不符合被害人学的原理,而且,在英美刑法中,实际上在诸多方面例如被害人同意、自我防卫与挑衅行为中均承认了被害人的共同责任。承认被害人的共同责任,具有合理的规范性基础。根据权利的限定性原理,被害人共同责任可区分为自愿的权利减少型和非自愿的权利减少型,在此基础上考虑行为人与被害人在具体案件中相关权利的重要性程度、比较因果关系与比较罪责等因素,从而为被害人共同责任的适用提供了具体的判断标准。英美刑法的被害人共同责任原理对我国司法实践具有重要的借鉴价值。