国际人权法中受教育权的性质:权利或义务?

受教育权是享有和实现其他人权的基础。作为一项授权性权利 ,确定受教育权的性质是切实促进和保护该项权利的前提。本文对受教育权的性质加以界定 ,在查明国际人权法文件对受教育权性质的表述、受教育权性质历史形态的基础上 ,论述了受教育权的权利属性 ,探讨在国际人权法现有发育程度和发展水平上受教育者所享有的受教育的权利和国家所承担的促进和保护受教育权的国际法义务 ,揭示出国际人权法中受教育权的性质对发展国内法的启示。     

从国际法角度看受教育权的权利性质

国际人权法主要文书的内容和精神都表明受教育权是一项基本人权而不附带任何义务,战后各国的国内法的修改也表现出接受这种精神的趋向。保障公民的受教育权要求国家承担起相应的义务。我国要顺应国际人权法发展的要求,在条件成熟时对宪法的相关条款进行修改,删除公民有受教育的义务的提法。     

受教育权初探

今天的受教育权是初始的受教育义务经“自由权形态”到“社会权形态”再到“发展权形态”历次演变的结果。在实证法上 ,受教育权也经历了一个从“受一般法律调整”到“作为人权入宪”到“进入国际人权法领域”的发展历程 ,目前受教育权保障的国际标准已经确立。在法律意义上 ,受教育权平等不仅要求权利设定上的平等 ,而且要求将平等原则作为保障公民受教育权的首要原则     

教育权之争——“孟母堂事件”的法理学思考

“孟母堂事件”是一场发生在国家与公民之间关于教育权的争执,我国现行法律规定了国家作为教育权主体的地位,而未对父母的教育权做出具体规定。缺少制约的国家教育权力的膨胀造成诸多弊端。父母基于自然,有权主张自己对子女的教育权,有权监督让渡给国家和社会的教育权,家庭教育应有其合法的地位。当然教育权作为公民的自由权的同时,又具有社会性,家庭教育必须接受国家、社会、法律、法规的监督与指导,国家也有义务保障家庭教育的实现。这样,父母的教育权利与国家的教育权力(利)之间应该互相制约,以保障受教育人受教育权的完美实现。     

论促进和保护受教育权的国际标准

从现有国际人权法渊源中确立促进和保护受教育权的国际标准可谓构成国际人权法的新发展 ,而从国际人权上对受教育权作出识别是确定上述标准的前提。本文根据有关受教育权的主要国际文件的统一化进程并结合国际社会的实践将受教育权归类为基本教育权、初等教育权、中等教育权、高等教育权和教育选择权 ,并依据一系列国际文件对世界各国促进和保护受教育权的义务性安排建立起国际社会促进和保护各类受教育权的国际标准模型 ,同时揭示了上述国际标准模型在适用过程中的特性。     

以进城农民工子女教育问题为视角论教育平等权

在我国,受教育权,不仅是公民应尽的义务,也是宪法和法律所确认和保障的公民基本权利。然而,农民工子女的平等受教育权却由于种种原因未能够得到切实的保护,从而引出教育平等权问题,并从法律保障机制角度提出如何完善对农民工子女受教育权的保护。     

浅析受教育权的基本权利属性

受教育权是我国宪法规定的一项基本权利,国际人权文件对受教育权的性质作出了明确的规定:受教育权是纯粹的权利而不是权利与义务的附合体。本文从社会权和自由权的二元区分角度出发,分析了受教育权作为一项基本权利而具备的基本权能以及其实现方式,并着重分析了受教育权对于国家和个人的现实意义。     

和谐社会中的平等受教育权问题

由于认识和制度设计上的缺陷,我国社会中还存在着受教育权不平等的现象。受教育权对于国家、社会和个人都具有重要的意义,教育作用的本质体现是,教育成为每一个社会成员得以发展的动力,是其向上流动的前提。我国同世界各国一样,都在包括宪法在内的一系列重要的法律文件中规定了公民平等的受教育权以及政府为此所承担的义务,并把它作为建设和谐社会的当然内容。我们应当在法治的轨道上解决这些问题。     

浅析受教育的基本权利属性

受教育权是我国宪法规定的一项基本权利,国际人权文件对受教育权的性质作出了明确的规定:受教育权是纯粹的权利而不是权利与义务的附合体.本文从社会权和自由权的二元区分角度出发,分析了受教育权作为一项基本权利而具备的基本权能以及其实现方式,并着重分析了受教育权对于国家和个人的现实意义.     

论受教育权的国家给付义务

尊重、保护和给付三层次性的国家义务结构论已为社会各界所广泛认同,而在有关受教育权的国家义务理论中,唯独受教育权的国家给付义务却很少被人论及,且其法律规制现状也比较紊乱。所以,对这一领域空缺的充实与完善实有必要。从受教育权得到充分保障的角度来看,其国家给付义务的内容体系建构与履行行为的监督机制是两大关键性问题。前者主要包括物质性给付、服务性给付和制度性给付三个方面;后者分为国家义务机关自行纠错、公民监督权的行使和公力救济三种途径。     

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.     

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.     

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.)

     

Family breakdown and the ‘Welfare Child’ in 19th and 20th century Britain

This article traces new cycles of interest in past children as distinct from past childhood. Recent work highlighting that a conceptualisation of childhood existed even in periods with few written records closes the chapter begun by Philippe Ariès in 1960. Instead, there has been a new surge of interest in children on the edges of family life, as well as children in similarly liminal positions between the worlds of adults and children: runaways, delinquents and orphans. Several themes in the literature are identified, based on the conflicting ideas of ‘body/mind’, ‘victim/threat’, ‘needs/rights’. It is noted that researchers are using more imaginative ways of reaching the lived experience of children than the family or institutional framework, and that an increasing link is drawn between historical and modern concerns such as child abuse and the care of ‘at risk’ children.     

Student mentoring to enhance graduates’ employability potential

This paper considers whether the adoption of a subject-specific, classroom-based, voluntary extra-curricular student mentoring scheme could provide an effective mechanism and andragogic approach to enhance higher education students’ employability potential pre-graduation.Over the three-year pilot, 26 more advanced (second to fourth year) undergraduate students actively mentored nearly 400 first year undergraduate students during workshops delivered annually within forensic and policing focused courses. In total, 17 mentors anonymously completed online, post-scheme surveys. Survey data was quantitatively analysed to evaluate the scheme, establish which skills and attributes mentors had developed and investigate whether mentors could appropriately identify example skills within professional terminology used during employer recruitment. In addition, this paper reflects on the implementation of remote student mentoring during the COVID-19 pandemic and its adoption within a blended learning framework.The results from this research strongly support mentoring as an effective mechanism to develop undergraduate employability skills, significantly developing mentors’ self-confidence and self-efficacy in their interpersonal and communication skills. Although mentors were aware of university graduate attributes and thought they could evidence these with appropriate examples, in practice this was not necessarily the case. As a result, a framework is proposed to enable mentors to identify their skills and how they may align with competencies sought by relevant forensic and policing employers. However, other andragogic practices may need to be implemented to maximise the potential for successful graduate employment.     

Vedic Language and Vaiṣṇava Theology:Madhva’s Use of Nirukta in his Ṛgbhāṣya

This article explores the way in which Madhva (1238–1317), the founder of the Dvaita Vedānta system of Hindu thought, reformulates the traditional exegetic practice of nirukta or “word derivation” to validate his pluralistic, hierarchical, and Vaiṣṇava reading of the Ṛgvedic hymns. Madhva’s Ṛgbhāṣya (RB) is conspicuous for its heavy reliance on and unique deployment of this exegetical tactic to validate several key features of his distinctive theology. These features include his belief in Viṣṇu’s unique possession of all perfect attributes (guṇaparipūrṇatva) and His related conveyability by all Vedic words (sarvaśabdavācyatva). Such an understanding of Vedic language invokes the basic nirukta presupposition that words are eternally affiliated with the meanings they convey. But it is also based onMadhva’s access to a lexicon entitled Vyāsa’s Nirukti with which his critics and perhaps even his commentators seem to be unfamiliar.While the precise status of this text is the subject of ongoing debate, Madhva’s possession of special insight into the sacred canon is established in part by his unique claim to be an avatāra of the wind god Vāyu and a direct disciple of Viṣṇu Himself in the form of Vyāsa₁. Thus, Madhva’s use of nirukta invokes his personal charisma to challenge not only conventional understandings of the hymns but traditional exegetic norms. Madhva’s provision of an alternative tradition of nirukta provoked sectarian debate throughout the Vijayanagara period over the extent to which one could innovate in established practices of reading the Veda. Articulating the Veda’s precise authority was a key feature of Brahmin debates during this period and reflects both the empire’s concern with promoting a shared religious ideology and the competition among rival Brahman sects for imperial patronage that this concern elicited. By looking at how two of Madhva’s most important commentators (the 14^th-century Jayatīrtha and the 17^th-century Rāghavendra) sought to defend his niruktis, this article will explore how notions of normative nirukta were articulated in response to Madhva’s deviations. At the same time, however, examining Madhva’s commentators’ defense of his niruktis also demonstrates the extent to which Madhva actually adhered to selected exegetic norms. This reveals that discomfort with Madhva’s particular methods for deriving words stemmed, in part, from a more general ambivalence towards this exegetical tactic whose inherent open-endedness threatened to undermine the fixity of the canon’s very substance: its language. Vyāsa’s Nirukti is one of several ”unknown sources” cited in Madhva’s commentaries whose exact status continues to be debated. Some scholars (e.g. Rao, Sharma, Siauve) maintain that these texts are part of a now lost Pāṅcarātra tradition that Madhva is attempting to preserve. This may be true for many of these citations. However, in addition to claiming to be both an avatāra of Vāyu and Viṣṇu-as-Vyāsa’s student, Madhva states in several places (e.g., VTN 42, RB 162) that the canon has suffered loss during transmission and that only Viṣṇu can reveal it in its entirety. Thus, it is possible that Madhva intends texts like Vyāsa’s Nirukti to be viewed as part of an ongoing and corrective revelation, a notion that is compatible with many Vaiṣṇava traditions (Halbfass, 1991: 4).     

Policing Outlawed Desire: ‘Homocriminality’ in Beat Spaces in Australia

Drawing on interview data of gay men who have had their behavior in public spaces scrutinised by agents of the law for signs deviance, this article explores the historical characteristics of police animosity towards such conduct in Australia. This entails examining encounters between police and gay men who pursue desire in ‘beat’ (or ‘cottage’ to the use the UK term) spaces. Exploring why these outlaw gay male subjects are so abject and troubling to the law, the discussion documents how law’s desire to regulate gay men plays out in the masquerade of ‘plain-clothes’ agent provocateur operations where police entrap gay men by mimicking gay bodily appearances, gestures and mannerisms. This article also examines how police regulation of gay desire functions as a form of violence that delimits expressions of same sex desire in public spaces. A key theme that underpins the analyses in this paper is that the policing of desire in ‘beat’ spaces helps produce qualities of illicitness and dangerousness and that this, in turn, fuels the circuit of desire at play between gay men and agents of the law.