美俄以危机管理机制之比较——兼谈对中国的启示

在后冷战时期,如何进行有效的危机管理已成为各国政府面临的最大战略挑战,美国、俄罗斯和以色列在危机管理方面各有其鲜明的特点,本文在研究上述三国危机管理机制构建及运行效能的基础上,针对我国目前危机管理机制尚不健全的现状,有针对性提出了几点建议。     

Policing of Political Protest. The Security Police's Control of the Extra-parliamentary Opposition in Sweden During and after the Cold War

Throughout history, those in power have monitored and exercised control over individuals and groups who have been perceived as representing some form of threat to their power. Irrespective of the system of government in place, political crime is a matter of central interest to a society's security police. Political crimes are often committed by extra-parliamentary groups or organizations. The focus of this paper is how the Swedish secret police (SÄPO) have acted against what they have perceived as the extreme left, mainly anarchists and autonomists, during and after the cold war. Did SÄPO's perception of this part of the extra-parliamentary opposition change when the cold war was over in the early 1990s? Were these groups and individuals perceived as the new enemy in the threat vacuum that temporarily arose in the aftermath of the cold war? Furthermore, had the new security concept that was introduced at that time any impact on SÄPO's activities?     

No Country for Made Men: The Decline of the Mafia in Post‐Soviet Georgia

This article studies the decline of a long‐standing mafia known as thieves‐in‐law in the post‐Soviet republic of Georgia. In 2005 an anti‐mafia campaign began which employed laws directly targeting the thieves‐in‐law. Within a year, all Georgia's thieves‐in‐law were in prison or had fled the country. This article looks at the success of the policy by investigating how Georgia's volatile socio‐economic environment in the 1990s affected the resilience of the thieves‐in‐law to state attack. The article presents data showing that the chaos of this period impacted on the ability of thieves‐in‐law to coordinate activities, regulate recruitment, and protect their main collective resource—their elite criminal status. Due to this, the reputation of the thieves‐in‐law as a mafia drastically declined creating vulnerability. The article adds to the literature on resilience in criminal networks and the study of organized crime in the post‐Soviet space.     

From Balance to Conflict: A New Constitution for the EU

As the crisis (and the Union's response to it) further develops, one thing appears clear: the European Union post‐crisis will be a very different animal from the pre‐crisis EU. This article offers an alternative model for the EU's constitutional future. Its objective is to invert the Union's current path‐dependency: changes to the way in which the Union works should serve to question, rather than entrench, its future objectives and trajectory. The paper argues that the post‐crisis EU requires a quite different normative, institutional and juridical framework. Such a framework must focus on reproducing the social and political cleavages that underlie authority on the national level and that allow divisive political choices to be legitimised. This reform project implies reshaping the prerogatives of the European institutions. Rather than seeking to prevent or bracket political conflict, the division of institutional competences and tasks should be rethought in order to allow the EU institutions to internalise within their decision‐making process the conflicts reproduced by social and political cleavages. Finally, a reformed legal order must play an active role as a facilitator and container of conflict over the ends of the integration project.     

A Strategic Approach to Regulating Unacceptable Forms of Work

Upgrading low‐waged and insecure work is central to contemporary labour and development initiatives, from the UN Sustainable Development Goals to the United Kingdom ‘Taylor Review’. The International Labour Organization's notion of unacceptable forms of work (UFW) is a crucial contribution. Yet the regulatory frameworks that can effectively address UFW are unclear. This article builds on a novel framework ‐ the Multidimensional Model of UFW. Drawing on theoretical literatures at the frontline of regulation scholarship, it proposes a strategic approach to UFW regulation that supports development, acknowledges the constrained resources of low‐income countries, and targets expansive and sustainable effects. Two key concepts are identified: points of leverage and institutional dynamism. Globally‐prominent regulatory frameworks are assessed as a starting point for mapping the strategic approach: the Mathadi Act of Maharashtra, India; Uruguayan domestic work legislation; minimum wages in the global North and South; and United Kingdom regulation of ‘zero‐hours contracts’.     

Institutional Recalibration and Judicial Delimitation

Throughout American history, a peculiar and recurrent disjunction has often arisen between the substance of transformative reforms and the decidedly less‐radical governing arrangements that arise in the aftermath of reform. To account for this disjunction, this article puts forth a theory of postreform “recalibration.” Political processes of recalibration are the means by which vague, indeterminate principles of reform are given operational meaning and translated into new governing arrangements. This article illuminates recalibration processes by examining two case‐studies: African American rights in the post‐Reconstruction era of the 1870s and 1880s, and labor rights in the post–New Deal era of the late 1930s. Finally, the article also highlights the crucial role of the Supreme Court in recalibration processes and sets forth a theory of judicial behavior as driven by an institutional interest in stability.     

The Current Political Discourse Concerning International Law

Reading current statements of world leaders on subjects relevant to international law is liable to cause confusion, even distress to those for whom the 1945 regulatory arrangements, as completed in the post‐Cold War era, have become the norm. On occasions international law is invoked, but in what seems an increasingly antagonistic way, amounting often to a dialogue of the deaf. At other times it is apparently or even transparently ignored. This touches many of the arrangements governments spent the preceding period seeking to establish. Is there a pattern to all this, and how should we respond? How susceptible is the edifice of international law to such rhetoric? These issues are examined in the context of the law of withdrawal from treaties. Three recent high profile examples are examined: Brexit, South Africa's purported withdrawal from the Rome Statute, and the United States’ announced withdrawal from the Paris Agreement.     

Through the Back Door: Applying Theories of Legal Compliance to Illegal Immigration During the Chinese Exclusion Era

This article applies theories of legal compliance to analyze the making of this country's first “illegal immigrants”—Chinese laborers who crossed the U.S.‐Canadian and U.S.‐Mexican borders in defiance of the Chinese exclusion laws (1882–1943). Drawing upon a variety of sources, including unpublished government records, I explore the ways in which Chinese laborers gained surreptitious entry into the United States during this period and ask, what explains their mass noncompliance? I suggest that while an instrumental perspective is useful for understanding these border crossings, it overlooks other important determinants of noncompliance: normative values and opportunity structures. Specifically, the exclusion laws were widely perceived by the Chinese as lacking social and moral legitimacy, and thus not worthy of obedience. In addition, the existence of smuggling networks and liberal immigration policies in Canada and Mexico played a critical role in facilitating noncompliance. The article concludes with a discussion about the benefits and challenges of using this theoretical framework to analyze noncompliance in immigration law.     

Trade Secrecy Injunctions,Disclosure Risks,and eBay's Influence

Historically, intellectual property (IP) owners could rely on injunctive remedies to prevent continued infringement. The Supreme Court's eBay v. MercExchange decision changed this, however. After eBay, patent courts no longer apply presumptions that push the deliberative scales in favor of injunctions (or “property rule” protection). Instead, patent injunctions require a careful four‐factor analysis, where plaintiffs must demonstrate irreparable injury (i.e., that money damages cannot compensate). Without question, eBay has made it harder for patent plaintiffs to secure injunctions, and has led many district courts to consider innovation policy concerns (e.g., the strategic behavior of patent “troll” plaintiffs) in the injunction calculus. By and large, courts’ more deliberative approach to patent injunctions post‐eBay has been viewed as beneficial for the patent system. Over the past decade, eBay’s influence has migrated to other areas of IP. This article offers the first account of eBay’s impact on federal trade secrecy injunctions. Important differences between trade secret law and other areas of IP—for example, the hard‐to‐quantify risk that disclosure poses to trade secret owners—has lessened eBay’s influence on trade secrecy injunctions. This article argues that disclosure risks justify a bifurcated approach to trade secrecy injunctions. That is, in cases involving the dissemination of trade secrets, courts should presume irreparable injury in the injunction calculus. However, in cases involving the unauthorized use of a trade secret—that is, where a defendant builds upon a plaintiff's trade secret but does not disseminate it—courts should not presume irreparable harm and, instead, should apply the eBay framework. As part of this assessment, courts should consider policy concerns related to cumulative innovation and employee mobility.     

NGOs,international courts,and state backlash against human rights accountability: Evidence from NGO mobilization against Tanzania at the African Court on Human and Peoples' Rights

When nongovernmental organizations (NGOs) encounter state resistance to human rights accountability, how do NGOs use international courts for their human rights advocacy strategies? Considering the overlapping phenomena of shrinking civic space within authoritarian, hybrid, and democratically backsliding regimes, and state backlash against international courts, NGOs navigate two potential levels of state backlash against human rights accountability. Building on the interdisciplinary scholarship on legal mobilization, we develop an integrated framework for explaining how states' two-level (domestic and international) backlash tactics can both promote and deter NGOs' strategic litigation at international human rights courts (IHRCs). States' backlash tactics can influence NGOs' opportunities, capacities, and goals for their human rights advocacy, and thus affect whether and how they pursue strategic litigation at IHRCs. We elucidate the value of this framework through case studies of NGOs' litigation against Tanzania at the African Court on Human and Peoples' Rights, an understudied IHRC. Drawing on an original data set, interviews, and documentation, we process-trace how Tanzania's various backlash tactics influenced whether and how NGOs litigated at the Court. Our framework and analysis show how state backlash against human rights accountability affects NGOs' mobilization at IHRCs and, relatedly, IHRCs' opportunities for influence.     

The Kelsen/Schmitt Controversy and the Evolving Relations between Constitutional and International Law

The article examines Hans Kelsen's and Carl Schmitt's lines of thought concerning the relationship between constitutional and international law, with the aim of ascertaining their respective ability to capture developments affecting that relationship, even those of a contradictory nature. It is significant that, while the rise of wars of humanitarian intervention in the post‐Cold War era has evoked Schmitt's concept of the bellum iustum, the evolution in the direction of the “constitutionalisation of international law” has drawn attention to Kelsen's theoretical approach. However, these assumptions rely heavily on the opposing objectives that the two authors claimed to pursue, such as, respectively, the search for the ultimate seat of political power and a pure theory of law. Things are more complicated, both because these objectives by no means exhaust Kelsen's and Schmitt's lines of thought, and because the conception of sovereignty as omnipotence, at the core of the Weimar controversy, is now behind us.     

Social Solidarity and the Power of Contract

This article explores what social policy contracts reveal about contemporary forms of social solidarity, and what they tell us about the nature of social cohesion in Western societies today. Taking the workfare contract as its point of departure, and drawing on Emile Durkheim's work, it is argued that social policy contracts disclose elements of mechanical and organic social solidarity. They function in both punitive and restitutive ways, their exclusionary and inclusive features acting as important sources of contemporary social solidarity. By reference to empirical evidence regarding workfare in various countries, the article highlights the importance of structural factors in determining the success of this policy. It is argued that the moralistic nature of the workfare contract, and the forms of social solidarity it expresses, obscures these deeper structural issues, leaving in place the conditions necessary for the persistence of social suffering characteristic of the post‐Keynesian era. The contention is that contract has a de‐politicizing effect in the field of social policy.     

Voting Procedures for Complex Collective Decisions. An Epistemic Perspective

Abstract. In addressing a complex issue that is decomposable into several sub‐questions, a committee can use different voting procedures: Either it can let the committee members vote on each sub‐question and then use the outcomes as premises for its conclusion on the main issue (premise based‐procedure, pbp), or it can let the members directly vote on the conclusion (conclusion‐based procedure, cbp). The procedures can lead to different results, but which of them is a better truth‐tracker? On the basis of Condorcet's jury theorem, we show that the pbp is clearly superior if the objective is to reach truth for the right (= correct) reasons. However, if the goal instead is to reach truth for whatever reasons, right or wrong, there will be cases in which using the cbp turns out to be more reliable, even though, for the most part, the pbp will retain its superiority. In that connection, we also consider the truth‐tracking potential of a “sophisticated” variant of the pbp, which is sensitive to the size of the majorities supporting each of the premises.     

Beyond Endogeneity: How Firms and Regulators Co‐Construct the Meaning of Regulation

What role do regulators and firms play in the construction of open‐ended regulatory terms? The new institutional legal endogeneity model posits that organizations respond to legal uncertainty by adopting formal structures to symbolically signal their compliance. These structures, however, tend to embody businesses' managerial and commercial values, as opposed to regulatory goals. Law becomes endogenous insofar as legal actors then defer to businesses' institutionalized ideas about regulation and compliance. Professionals, such as lawyers and human‐resource managers, and their strategic deployment of framing, are portrayed as the engines of the above process of legal endogeneity. By comparison, administrative agencies' strategies in shaping the meaning that corporations attach to the law are practically ignored. Building on a detailed case study of British financial firms' responses to the Financial Services Authority's Treating Customers Fairly initiative, this article problematizes the supposition of regulatory deference to business constructions of law. Instead, it develops a more balanced model that recognizes business professionals' and regulators' co‐construction of regulation and compliance. The process of regulatory meaning co‐construction, as depicted by this model, involves alignment and disputes between regulators' and professionals' strategic framing of regulatory concerns with tangible consequences for the enactment of regulation.     

Beyond Kyoto: The EU's Contribution to a More Sustainable World Economy

The EU has been leading the world fight against climate change since the late 1990s. This activism on the international scene has served as a stimulus for a common action against global warming that has, in the last 10 years, become a world referent and the central issue in the EU environmental policy. The most relevant initiative is the greenhouse gas (GHG) emissions trading scheme (ETS), adopted in fulfilment of the Kyoto Protocol. In 2008, the EU adopted a new set of measures on climate and energy for the post‐Kyoto period (2013–2020). This new legal framework, coupled with the provisions introduced by the Treaty of Lisbon and the ‘Europe 2020’ strategy, represents the EU's commitment to promote a more sustainable European and world economic model.     

Singapore's Culture War over Section 377A: Through the Lens of Public Choice and Multilingual Research

The 2007 debate over the retention of Singapore's male sodomy law provision set off a vigorous and passionate public debate reminiscent of the US culture war. However, the Singapore government's final decision reflects an interesting compromise. The law was retained, but its moral content was severely curtailed. This article critically examines this episode and explores the political dynamics driving the compromise. Enriching public choice theory on interest group capture, this article argues that the ruling party's political dominance coupled with limited but real political competition is surprisingly effective in aligning the government's position with the preference of the majority despite concerted pressure from well‐mobilized minority interest groups. Current legal scholarly work on this debate has focused on the “vigorous debate” in the English‐language forums. In this article, the examination of the contemporaneous discourse in Chinese and Malay newspapers enables a more accurate and comprehensive appreciation of this culture war episode.     

Building ‘healthy happy family units’: Aileen Fitzpatrick and reuniting children separated by the Greek Civil War with their families in Australia, 1949–1954

Abstract

This article explores the efforts by Aileen Fitzpatrick, the Australian social worker, who repatriated child refugees from Greece at the height of the Greek Civil War, to reconstruct ‘healthy, happy family units’. I explore several themes. First, Fitzpatrick’s argument for the unification of families echoed the view that the family unit represented democracy and freedom in the post-war period. Second, an appeal to reuniting family became a successful strategy for crossing cold war lines when dealing with several governments. Third, for Fitzpatrick child saving from war and reuniting families was perceived to be essential to democracy, humanitarianism and internationalism. Finally, by taking a biographical approach, the details of the experience of family emerge in new ways. A focus on Fitzpatrick’s strategies suggests family rhetoric could be used to both promote and yet also cross cold war lines. More broadly, this article seeks to embed the history of the family within the general history of the post-war period as a way of highlighting how the ideal of the family was mobilised in rhetoric on freedom, democracy and the future and which in practice revealed the severe challenges facing families after the war.     

Anatomy of Judicial Backlash: Southern Leaders,Massive Resistance,and the Supreme Court, 1954–1958

Exploiting a range of archival materials, we argue that state‐level variation in judicial backlash to Brown was as much the result of strategic choices by southern political elites as it was the ingrained prejudices of the region's white voters. Presenting case studies of massive resistance in Mississippi, Louisiana, Virginia, and Arkansas, we show that elite agency profoundly shaped the patchwork development of grassroots resistance to integration across the South. These findings challenge the prevailing view that backlash to Brown signaled the unequivocal triumph of racial conservatives. Rather, we argue that the region's response offered individual members of the southern elite significant autonomy to direct massive resistance in their home states. We also argue that southern lawmakers were responsible for the South's embrace of popular constitutionalism post‐Brown, and thus that it may not have been “popular” at all. We conclude that studies of judicial backlash would do well to reevaluate the assumption that backlash is necessarily a grassroots phenomenon.     

Machiavelli at 500: From Cynic to Vigilant Supporter of International Law

Machiavelli's 500‐year‐old treatise The Prince outlined the central features of the realist tradition in international relations. His premises led him to question the likelihood of efficacious and stable international law and international courts, a skepticism that has present‐day proponents. Machiavelli's reluctance was due to a combination of features of human nature and a focus on anarchic features of the relations among states. This article challenges these assumptions and implications: Other interpretations of human nature are closer to Machiavelli's text, and current relations among states are significantly different. The revised assumptions should make Machiavelli's followers more optimistic about international law and international courts.     

From Nomos to Hegung: Sovereignty and the Laws of War in Schmitt's International Order

Carl Schmitt's notion of nomos is commonly regarded as the international equivalent to the national sovereign's decision on the exception. But can concrete spatial order alone turn a constellation of forces into an international order? This article looks at Schmitt's work The Nomos of the Earth and proposes that it is the process of bracketing war called Hegung which takes the place of the sovereign in the international order Schmitt describes. Beginning from an analysis of nomos, the ordering function of the presocratic concept moira is explored. It is argued that the process of Hegung, like moira, does not just achieve the containment of war, but constitutes the condition of possibility for plural order.