Radbruch as an Affirmative Holist.On the Question of What Ought to Be Preserved of His Philosophy

Abstract. Gustav Radbruch is one of the most important German‐speaking philosophers of law of the twentieth century. This paper raises the question of how to classify Radbruch's theories in the international context of legal philosophy and philosophy in general. Radbruch's work was mainly influenced by the southwest German school of Neo‐Kantianism, represented by Windelband, Rickert, and Lask. Their theories of culture and value show an affirmative‐holistic understanding of philosophy as a source of wisdom and meaningfulness. Kant, on the other hand, belongs more to a fundamentally different, critical camp of philosophy. Although Radbruch has incorporated Kantian Elements into his theory, he is rather a member of the affirmative‐holistic camp. In the end the question will be raised as to what ought to be preserved of his philosophy.     

论荀子的“德育哲学”——兼论荀子性恶论中的“公义”优先思想

在儒家思想史上,荀子主张性恶,常被视为儒家异端.但事实上,荀子的思想和以思孟为代表的儒家思想的关系表现的是儒家内部的辩证对话关系.从荀子性恶论的深层含义看,荀子的思想一是突显了儒家的"功利主义",一是突显了制度层面的"公义"优先思想.就后者而言,它与孔子、思孟包括宋明新儒家从个人的道德本心出发来思考问题的思想进路明显不同,它们事实上构成了儒家内部的康德和黑格尔式的对话.具体落实到教育观念上,荀子的立论与思孟等相比同样显示出了差异:荀子强调的是"礼义法度"的制度性他律和强制,强调的是君、师、友和外在环境的决定地位;孔子、思孟等强调的是道德的自觉和启发.但尽管有如许差异,就德育本身而言,荀子同样承诺了德育的某种本体地位,并提供了一套完整的"德育哲学".     

Toward an asymmetric Coase theorem

Various reformulations of the Coase theorem have developed normative corollaries on the choice of optimal remedies in the presence of positive transaction costs. In this article, we consider the extent to which these propositions are affected by the presence of asymmetric transaction costs, and we offer a reformulation of the Coase theorem which takes into account asymmetrical transaction costs. Our analysis combines several insights from the existing literature on property-type vesus liability-type remedies, identifying the conditions for the superiority of each type of remedy. Further, we consider the possible use of mixed remedies and identify the optimal scope of such solution.     

Toward an Interpretive Criminal Justice

This paper presents the academic field of criminal justice as an interpretive social science. The opening section discusses academic criminal justice from scientific and interpretive perspectives, arguing that the terminology of “justice” is essentially contested. The second section presents the key implication of a contested core terminology: that an interpretive approach is the best way to develop the academic field of criminal justice. Section three reviews central elements of the Gadamerian tradition, with an eye towards its application to the field of criminal justice. The fourth section considers two issues pertinent to an interpretive criminal justice—the problem of interpretation in a field where professional practice is destructive to other normative systems, and the contribution of an interpretive criminal justice to public policy.     

宪法哲学:自由的哲学

宪法哲学是以人为起点并以人为归宿的哲学。一切与人有关的哲学 ,都与人的自由有关 ,因而 ,都可以说是自由的哲学。早期的自由哲学是借助于宪法来谋求其目的的 ;而现代的宪法哲学 ,又往往借助于自由哲学来建构其自身。人的自由状况取决于人的生活方式。普遍的自由只能是一种低度标准的自由 ,低度自由的标准同时也就是有限政府的标准。     

Toward an Integrated Model of Offending Frequency: A Replication Study

Criminology is limited by a paucity of replication studies. As such, the measurement of key concepts and the empirical support for theory is open to skepticism. Drawing on the RAND Survey of Inmates and a replication of it, the current study developed an integrated model of offending frequency that contained measures from the rational choice, criminal identity, and criminal careers literatures. A confirmatory structural equation model revealed that criminal self‐concept partially mediated the effects of background risk factors. Perceived costs of crime had no significant effect. Perceived benefits of crime were directly and indirectly (through criminal identity) related to offending frequency. However, differences in measures and variance across data sets contributed to discrepant model fit. This attests to the importance and increasing need for precise replication in criminological research.     

民主·宪政民主及其低度程序法则

人是民主的目标,任何意义的民主都与人的生活方式有关;政府是民主的载体,民主是引领政府走向人道的唯一方法。民主政治的核心程序是竞争性的选举,但选举仅仅是一种低度的民主形式。宪政民主乃民主体制与宪政主义的有机结合,使它得以运转的低度程序法则,正是现代政府合法性的低度标准。     

Policing the deinstitutionalized mentally ill: Toward an understanding of its function

Although the police have long been recognized as a community health resource in the United States, this role has expanded significantly over the past several decades as a result of the deinstitutionalization movement. From a critical perspective, this article provides an analysis of the relationship between this enlarged police role and the current American socio-political order, in general, and the welfare state in particular. It is argued that in the course of handling the mentally ill the police carry out a number of functions for both the welfare state and the socio-political order, and in doing so, shore-up the social conditions which have inhibited the development of a positive, long-term care policy for the mentally ill. This article discusses three such functions and identifies an alternative social arrangement; one in which the police would not have to serve as a support for liberal-capitalism and its attendant inadequate welfare state.     

康德法哲学视野下的“动物权利论”批判

当代动物权利运动的主将汤姆·雷根提出的动物权利论遮蔽了道德共同体成员的理性和道德义务这两个道德理论中的核心概念,忽视了理性、义务在构建道德共同体中的必要性,也不能在逻辑上全面地说明动物与人类之间以及动物之间的关系。康德主义的道德哲学则仅通过“实践理性”这一标准,即可合理说明人与动物在道德上的不同地位,也能更好地解释和指导人类利用和保护动物的实践。     

Toward an Empirical Approach to Evidentiary Ruling

This paper responds to criticisms/misconstruals of our measure of the maximum probative value of evidence (D. Davis & W. C. Follette, 2002), and our conclusions regarding the potentially prejudicial role of intuitive profiling evidence, including motive. We argue that R. D. Friedman and R. C. Park's (2003) criticisms and example cases are largely based on inappropriate violation of the presumption of innocence. Further, we address the merits of our absolute difference measure of probative value versus those of the Bayesian likelihood ratio championed by D. H. Kaye and J. J. Koehler (2003). We recommend methods for presentation of measures of evidence utility that convey complexities of interdependence between new and existing evidence. Finally, we propose a probable cause standard for admission of potentially prejudicial evidence, dictating that admissibility of such evidence should be contingent upon other substantial evidence of guilt.     

Toward the Assessment of Procedural and Distributive Justice in Resolving Family Disputes

The first phase of this study focused on the development of comprehensive, conceptually integrated measures of procedural and distributive justice in the context of family decision making. In the second phase, these measures were used to examine older adolescents' justice appraisals of specific family disputes and the relation of these justice appraisals to family systems functioning along dimensions of conflict and cohesion. A Family Justice Inventory was constructed, which included two global indices (one for procedural justice and one for outcome fairness) and 13 subscales: 9 measuring specific facets of the procedural justice construct and 4 measuring specific dimensions of the distributive justice construct. Factor analysis revealed that the 13 Family Justice Inventory subscales could be reduced to 5 interpretable procedural justice factors (personal respect, status recognition, process control, correction, and trust) and 4 interpretable distributive justice factors (decision control, need, equality, and equity). Using procedural justice factor scores in regression analyses, personal respect, status recognition, correction, and trust each accounted for unique variance in family conflict and family cohesion. Using distributive justice factor scores in regression analyses, both decision control and need accounted for unique variance in family conflict and family cohesion. Using both procedural and distributive justice factor scores in regression analyses, personal respect, status recognition, and trust each accounted for unique variance in both family conflict and family cohesion. Additionally, equity also accounted for unique variance in family conflict but not family cohesion and the direction of the relationship was positive, that is, more equity in resolving specific family disputes was associated higher levels of general family conflict.     

Mapping Police Organizational Change: From a Mechanistic Toward an Organic Model

Community police organizations have been the focus of substantial research since the 1960s. Recommendations from this research have frequently suggested some degree of reform. This reform effort has been directed in part at the oragnizational design of police departments, emphasizing movement away from a mechanistic to more of an organic approach. This article describes mechanistic and organic model constructs and relates them to both continuum and matrix change perspectives and a change problem-intervention strategy typology. The matrix and typology are used to “map” the change process associated with team policing, which is one example of attempts to make police organizations more organic.     

Bourdieu and Foucault: A Conceptual Integration Toward an Empirical Sociology of Prisons

Although the similarities between them are under analyzed, Pierre Bourdieu’s and Michel Foucault’s theories of culture and power are interrelated in some compelling ways. Outline of a Theory of Practice (1977) and Discipline and Punish (1979) are two of the most influential contributions in post-structural and postmodern theory. Yet, far more attention is paid to Foucault’s contributions in criminology than to Bourdieu’s. This essay brings together the work of these influential theorists to argue for a critical examination of the sociology of prisons. Bourdieu’s concepts of: (1) habitus, (2) ethos, (3) doxa, and (4) the theory of practice are related to Foucault’s ideas about (1) discipline, (2) docile bodies, (3) panopticism, and (4) history of the present by comparing specific examples from the original works. Then, the combination of those primary concepts is used to address specific methodological concerns researchers should consider when doing empirical research in prison.     

Assessing Violence Risk Among Discharged Psychiatric Patients: Toward an Ecological Approach

This paper draws upon data from the Pittsburgh site of the MacArthur Foundation's Risk Assessment Study, a large-scale study of violence risk among persons discharged from psychiatric hospitals, to examine the effect of the neighborhood context on risk of violence. This paper has two purposes: (1) to assess the extent to which the inclusion of neighborhood characteristics enhances violence prediction models—models that traditionally only include individual-level characteristics; and (2) to assess the consistency of individual level risk factors across different neighborhood contexts. Results indicate that neighborhood poverty has an impact over and above the effects of individual characteristics in identifying cases with violence. These findings support efforts to include neighborhood context in the assessment and management of violence risk among discharged psychiatric patients.     

Toward an integration of economic and sociological approaches?

This article answers the question whether sociology of law and law and economics can be unificd into one integrated science. First, it is argued that an integration process inside law and economics has taken place, integrating most schools and partial analyses into one mainstream law and economics. Second, it is argued that there are no natural barriers against an integration of sociology and economics. Purely economic theories cannot and do not exist. What is calledeconomic analysis of law is basically a mixture of, for instance, 70 percent economics, 10 percent sociology, 10 percent psychology, and 10 percent other sciences. In addition, there is no such a thing as a purely sociological concept; concepts are sociological only in the sense that they are invented by people who call themselves sociologists.Nevertheless one should not expect that such a richer social science will lead to fundamentally different predictions and policy recommendations than those derived from the current simplistic economic analysis of law. The aspects studied by sociologists but assumed away by legal economists to date have in most cases no influence on the determination of (optimal) legal rules or on the long-run effects of legal rules.