当代西方人权批判理论述评

虽然人权是当今世界一个非常强势的政治和伦理话语,但它一直面临着来自各方面的质疑。从19世纪的社会主义、自由主义、保守主义的批评到当今社群主义和后现代主义的诘难,西方社会对人权的批判一直没有停止过。当代西方人权批判从如下四个相互关联的视角展开:一是道德批判;二是法律批判;三是政治批判;四是社会批判。鉴于存在上述批判,需要认真对待谁之人权、何种人权以及人权的道德局限问题,人权的理论与实践仍然是一个开放的命题。     

History "lite" in modern American bioethics

This article explores a disconcerting phenomenon. In recent years, in writing on the subject of assisted suicide, several bioethicists have made extraordinary historical claims. The history of Western moral theories that exhibit disapproval of all forms of suicide is well known. Nevertheless, the bioethicists have claimed that some of Europe's most prominent early modern moral philosophers never believed in the inalienable right to life. This claim is quite controversial because this right is an important basis for secular moral opposition to assisted suicide. Irrespective of whether or not opposition to assisted suicide is philosophically justified, the philosophers the bioethicists write about did in fact believe in the inalienable right to life. Bioethicists can only come to their conclusions concerning the philosophers by employing an improper historical methodology.     

Pathologies of Deliberation in the EU

The article explores the ‘dark side’ of deliberation with regard to the EU. In contrast to the dominant apologetics of deliberation, it argues that even though deliberation might have benevolent effects on decision making in the EU, the convention method cannot be viewed as a democratic alternative to the intergovernmental conferences. This is due to the pathologies of deliberation that can only be corrected by applying additional mechanisms. The article explores the pathologies of deliberation by referring to recent experience with the convention method applied within the Convention on the Charter of Fundamental Rights (1999/2000) and the Convention on the Future of the European Union (2002/2003). It discusses two types of deliberative pathologies including the false will‐formation and the rational hijacking of deliberation which question the validity of democratic claims made by deliberation theory.     

Moral Individualism and the Justification of Liberal Democracy

This article discusses the connection between individualism, pluralism and the moral foundation of liberal democracy. It analyses whether the requirement of value pluralism promoted by liberal democracies leads inevitably to communitarian ethics, or whether the liberal and democratic values of autonomy, tolerance and equality are actually based on an objectivistic and teleological account of justice. The author argues that value-neutral procedural and methodological individualism cannot support the liberal demands for pluralism and tolerance in a democratic regime. Instead, the justification of liberal democracy has to replace mechanical, methodological individualism with moral individualism. Moral individualism shows that in order to be legitimate and functioning liberal democracy has to be based on the form of individualism which contains objectivist moral aspects.     

"Life Begins When They Steal Your Bicycle": Cross-Cultural Practices of Personhood at the Beginnings and Ends of Life

This paper examines two reasons anthropological expertise has recently come to be considered relevant to American debates about the beginnings and ends of life. First, bioethicists and clinicians working to accommodate diverse perspectives into clinical decision-making have come to appreciate the importance of culture. Second, anthropologists are the recognized authorities on the cultural logic and behaviors of the "Other." Yet the definitions of culture with which bioethicists and clinicians operate may differ from those used by contemporary anthropologists, who view culture as a contingent, contested set of social practices that are continually formulated and re-negotiated in daily interactions. Using ethnographic examples, the author argues that the qualities that constitute "personhood" should be sought in social practices rather than in cognitive capacities or moral attributes.     

Social Accountability Audits: Challenging or Defending Democratic Governance?

Current criticisms of the role of audit in society have painted a bleak picture about its use as a regulatory tool, highlighting negative consequences for democratic governance. This paper examines social accountability audits in light of these concerns. Two case studies of social certification systems are examined in detail: Fairtrade Labelling Organizations International (FLO) and Social Accountability International (SAI). These systems are evaluated using the lenses of accountability, ownership, trust, and reflexivity before concluding that social auditing processes, if done well and situated within stakeholder-based institutions such as FLO and SAI, can aid democratic and legitimate governance processes.     

More history "lite" in modern American bioethics

This article revisits a disconcerting phenomenon. The history of prominent 17th and 18th century moral theorists who exhibited disapproval of all forms of suicide is well known. Nevertheless, there are many bioethicists who continue to claim that either these moral theorists never actually opposed suicide, or that they never believed in the inalienable right to life and liberty that is an important basis for secular moral opposition to assisted suicide. These erroneous claims evince an improper historical methodology. They originate from the bioethicists' inaccurate quotation of the moral theorists and also from the bioethicists' unwillingness to understand the moral theorists in their relevant historical context. The author concludes that this attempt to obfuscate the true history of 17th and 18th century moral theory may also be removing a line of inquiry from originalist constitutional analysis that Federal Courts have a duty to engage in.     

论中国特色社会主义道德建设的着力点

深入挖掘社会主义道德建设的着力点,关系着中国特色社会主义道德建设实践的深入开展。中国特色社会主义道德建设要始终坚持以马克思主义为指导,秉承"以人为本"的价值理念;要服务于中国特色社会主义共同理想,为改革开放和现代化建设提供精神动力;要继承传统道德精华、及时归纳时代精神于社会主义道德体系之中;社会主义荣辱观集中反映了中国特色社会主义道德建设的基本内容,为中国特色社会主义道德建设指明了方向。     

Strengthening Moral Distinction

The authors in this symposium on Sparing Civilians gave me much to think about; their criticisms have helped me to strengthen the argument for moral distinction, and enhance the moral protection of civilians in war. In this response I address their objections thematically, focusing in turn on each chapter of the book.     

Nietzsche's assault on the ideal of democratic justice

The moment beckons serious scholars to critically examine Nietzsche's political thought. This study examines Nietzsche's polemics on the democratic ideal. According to Nietzsche, democratic principles have taken over the role of traditional moral and religious ideals. From a very exhausted state, the bourgeoisie revengefully have created a set of ideals which posit absolute and normative standards of behavior applicable to all. These democratic ideals reflect character traits which the bourgeoisie already have habituated. Nietzsche's greatest objection to the cultural supremacy of the democratic ideal is that its target is the aristocratic instinet and psychology. Since the democratic ideal has attained its sovereign and universal status. Nietzsche believes the truly exceptional human beings are becoming “vanquished by the leveling magic of the great number”.     

Remorse, Reform and the Real World: Reply to Lippke

This article replies to some of Richard Lippke’s criticisms of my earlier article on the issue of whether remorse should mitigate sentence. I query whether remorse-based mitigation must always wait for signs of moral reform, and re-affirm that remorse is worthy of recognition in itself and not just for the moral reform it may bring. I also argue that, where delayed mitigation is appropriate, the task of ascertaining moral reform is not as dubious, practically or in principle, as Lippke maintains. I then confirm that my defence of the principle that remorse should mitigate sentence is not necessarily a defence of current practice.     

The criminal investigative process: Toward a conceptual framework

There have been few attempts to develop a conceptual framework of the criminal investigation process. This article attempts to develop such a framework through use of a criminal act continuum to identify intervention points as these relate to investigative techniques and information sources. Criminal investigation is then considered within a political context to identify eight investigative subprocesses, each of which poses varying degrees of risk to democratic social systems.     

Judgment and Calculation in the Selection of Sentence

Formal sentencing guidelines, which are increasingly seen as the best means of eliminating unwarranted disparity, have undoubted merits. Well-crafted guidelines can promote more transparent and coherent sentencing practices. Their primary goal will usually be to ensure that similarly situated offenders convicted of similar offences receive broadly similar penalties. This, in turn, should increase public confidence in the criminal justice system. Judicially-developed guidance has its own advantages. A judgment, unlike a statute or a formal guideline, must persuade its audience as to the merits of the decision reached. Appeal court sentencing judgments must (or ideally should) engage in some degree of moral reasoning so as to explain why a particular offence or offender deserves the penalty that is being imposed or upheld. Adjudication of this nature plays an important role in stimulating debate and deliberation about the purposes of punishment, the appropriate use of particular sentencing options, the relevance of various offence- and offender-related factors and other fundamental questions about which opinions will inevitably change over time. Although they may have distinct epistemic properties and different objectives, formal guidelines and judicially-developed principles have their own unique merits. We should therefore aim for a system that incorporates the best qualities of both. In practice, this means that guidelines should be so constructed as to leave space for judicial deliberation about fundamental principles and current practice. In this way, guideline creators and courts can continue to learn from each other.     

行政指导性质辨析

随着现代市场经济和民主政治的发展,行政指导已成为一种灵活有效的行政管理模式。学界对行政指导的性质存在诸多争议,该争议的存在影响了行政指导在实践中的正确适用及其法律救济。因此,有必要对此加以探讨,确认行政指导的行政行为性质,将其纳入法治化发展的轨道,使之更好地发挥在经济管理和社会管理中的积极作用。     

Ambivalence About Equality in the United States or, Did Tocqueville Get it Wrong and Why Does that Matter?

Alexis de Tocqueville believed that “democratic peoples’... passion for equality is ardent, insatiable, eternal, and invincible.” This article examines whether and under what conditions residents of the United States demonstrate such a commitment to equality. I show that at many points in history, Americans have indeed chosen to move toward greater justice and less oppression; however, there are clear limits to their passion for equality. White Americans endorse less social, political, and economic equality than do African Americans, but even the latter often resist equality for groups that they perceive to be threats, or for behaviors that threaten strong social or moral norms. The article discusses implications for political activists of these patterns of support for and resistance to greater equality, and suggests strategies for overcoming oppression and promoting justice.     

西方国家议会立法改革趋势之探析——兼论政府在立法中的功能角色

20世纪以来在法律和政治理论上处于优越地位的西方国家议会，都已呈现出一种共同趋势，即作为立法机关的地位实际下降了。而政府在很大程度上主导、直至支配着立法。为应对此种变化，当代西方国家议会趋于在统一掌握立法最终审议权和控制权的前提下，广泛采用各种更灵活的立法形式。且越来越重视其民主监督功能的发挥，以期一方面强化政府立法的民主保障，加强对政府立法的监督和控制，以协调其立法民主与行政效率的动态统一；另一方面改革和完善议会制度。以实质性地强化其立法审议和立法监督能力。     

Committees and Legislative Strengthening: The Growing Influence of Committees in Ukraine's Legislative Process

The Ukrainian legislature is in the process of transforming from a ‘rubber stamp’ institution of the Soviet type into an ‘institution that matters’ in a new democratic state. The practice of democratic institution building in the post-Soviet countries presents multiple examples of powerful executives who gained dominance in legislative processes. What path has Ukraine taken and what can explain its specific characteristics? This article charts the growth of committees here as a marker of legislative institutionalisation in Ukraine. The study finds that Ukrainian legislative committees defy prevalent regional trends and, contrary to expectations, have asserted independent roles. It then discusses factors that may account for this unique regional development – the role of a dual executive structure and the Ukraine party system.     

The Law beneath Rights' Feet. Preliminary Investigation for a Study of the Charter of Fundamental Rights of the European Union

This article is meant as a philosophical preface to the study of the European Charter of Fundamental Rights. In particular, attention is focused on a particular legal positivistic reading of legislation as a political moment which would not allow for transcendental rights. This view is rejected by pointing out how much the notion of citizenship and consequently of fundamental rights is central for the democratic, and in some case even for the legal positivistic, celebration of legislation. In the last section a few conclusions are drawn as far as the scope of the Charter is concerned. In particular, any interpretation of it in the framework of the so–called regulatory paradigm (which gives up the democratic connection between deliberation and representation) is considered incoherent and self–defeating. In addition the principle of indivisibility of rights is evoked in defence of the validity of social rights within the Charter.     

Authority, Equality and Democracy

Abstract.  The purpose of this essay is to argue that considerations of fairness play an essential role in the justification of democratic decision procedures. The first part argues that considerations of fairness form part of a practical authority's legitimacy, and that in the political context, those considerations of fairness entail a principle of equal distribution of political power. Subsequently, the article elaborates on the kind of equality which is required in democratic procedures, arguing that different principles of equality should apply to the deliberation and the decision stages of democracy. Finally, the article concludes with a few sketchy remarks on the possible relations between considerations of fairness and soundness of democratic procedures.     

Political Liberties and Social Equality

This paper examines the link between political liberties and social equality, and contends that the former are constitutive of, i.e. necessary to secure, the latter. Although this constitutive link is often assumed in the literature on political liberties, the reasons why it holds true remain largely unexplored. Three such reasons are examined here. First, political liberties are constitutive of social equality because they bestow political power on their holders, leaving disenfranchised individuals excluded from decisions that are particularly pervasive, coercively enforced, hard to avoid, monopolistic, and final. Second, they are constitutive of social equality due to their positional value, such that those who are denied such liberties are socially downgraded because and to the extent that others enjoy them. Third, they are constitutive of social equality due to their expressive value, in the sense that, by disenfranchising some individuals, the state publicly fails to recognize their equal moral agency. While unpacking these reasons, we address some criticisms of this constitutive link recently raised by Steven Wall and Jason Brennan.