"实体正义"和"程序正义"的一种后现代主义视角

如何坚持法律的正义准则、确定司法过程中的法律价值准则是司法改革的中心问题.法律的实体正义正被解构和反思,人们开始思考行动中的法律正义,关注程序正义.后现代主义的思想家试图从现象学或者语言学等不同的角度找到一条立足于程序正义的出路,但是由于程序本身的微观性、个体化,寻找程序正义本身的道路必然是漫长的.     

The Court of Justice and the Union Citizen

Abstract Over a decade since the conception of the Union citizen, the aim of this article very simply is to measure his growth and maturity with a sustained analysis of the jurisprudence of the Court of Justice in this regard. After all, it was Advocate General Lèger who stated that it was for the Court to ensure that its full scope was attained. The article focuses predominantly on three areas of study: Member State nationality law and citizenship, the effect and meaning of Article 18 EC, and the ever‐evolving right to equal treatment for the Union citizen. It is fully updated in the light of recent case law, the Treaty establishing a Constitution for Europe, and the newly adopted Directive 2004/58 EC.     

The Journey to Comprehensibility: Court Forms as the First Barrier to Accessing Justice

International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique - The article explores the comprehensibility of court forms by providing a quantitative overview...     

The International Criminal Court and Africa: Exemplary Justice

This is a theoretical and empirical investigation into the causal link (if any) between international criminal trials and preventing violence through exemplary prosecutions. Specifically how do representative trials of persons accused of having the greatest responsibility for the most serious crimes of concern to the international community as a whole, supposedly bind recurrent violence? The argument pursued is that by using an accused as an example, a court engages in an indirect and uncertain substitution of personal rights for social harmony and order. These prosecutions combine a peculiar rhetoric, logic and aesthetic, all which substitute the responsibilities for a society in general to a particular individual in order to redeem that society by transferring its communal responsibility onto the individual punished as a form of atonement or expiation. International and domestic trials, as well as truth and reconciliation commissions, are part of a suite of options addressing communal mass violence that can work in tandem. However, because those convicted do not have a monopoly on criminality, nor do those merely reconciled have a monopoly on virtue, exemplification through punishment only targets a few on behalf of the many. Indeed such a redemptively sacrificial economy distinguishes legal justice from mere vengeance.     

The 2006 Record of the International Court of Justice

This article presents a brief overview of developments relatingto the International Court of Justice during 2006 and reportson certain revisions and additions that were introduced to thePractice Directions and on the latest changes in the Court'scomposition. Finally, a brief outlook is presented on the basisof the status of the Court's docket as on 31 December 2006.     

The Juvenile Drug Court Judge and Lawyer: Four Common Mistakes in Treating Drug Court Adolescents

This article will present information gleaned from anecdotal experience of existing juvenile drug treatment courts regarding several common mistakes often made by those new to the drug court. The mistakes discussed include: 1) Believing the work and role responsibilities in a traditional juvenile court will not change significantly when entering a juvenile drug court; 2) Citing the elimination of drug and alcohol use as a final outcome goal when developing the mission statement for a juvenile drug court; 3) Believing that a juvenile drug court ensures accountability by keeping a close eye on participants and setting immediate consequences for any break in program rules; 4) Using vicarious learning to “teach a lesson”–making an example of an individual participant who has broken program rules in front of the large group. The goal of this article is not only to raise caution to these pitfalls, but also to help incoming judges and lawyers become aware of the changes that working in a juvenile drug court will demand.     

Exporting Court Innovation from the United States to Continental Europe: Compatibility between the Drug Court Model and Inquisitorial Justice Systems

This paper explores the viability of the adoption of the American drug court model by European countries relying on inquisitorial justice systems, by focusing on the compatibility between key features of each. Discussion of the key features of the European inquisitorial systems focuses on their underlying ideologies and values. Discussion of the key features of the American drug courts is informed by data from a comprehensive nationwide survey of drug courts (the National Drug Court Survey).

The preference for rehabilitative goals, the very active judicial role of the judge, and the collaboration between defense and prosecution in inquisitorial systems are identified as elements highly conducive to the importation of drug courts. Treatment integration and the relative (in) flexibility to establish a legal framework for the operation of drug courts are identified as challenges to potential importation. Overall, there is a great deal of compatibility between key features of the drug courts in the US and key features of the inquisitorial systems of most European countries. This makes the adoption of drug courts in Europe a potentially viable response to illegal drug use and drug‐related crime.     

The European Court of Justice and the Rhetoric of Affirmative Action

The recent Marschall decision by the European Court of Justice (ECJ) to uphold a principle giving precedence to women for promotions in the workplace seems promising for the future of affirmative action. At first glance, this decision seems to indicate that the ECJ has taken a different path, moving away from its earlier Kalanke decision which had jeopardised further development of affirmative action in the European Union. On a closer examination, both Kalanke’s sweeping ban of preferential treatment based on gender and Marschall’s new interpretation appear as discursive replies to the same dilemma: should the Court deny the normative objective of equality contained in EC law to generate meaning, thus turning equality into a mere formal principle and rendering judicial review trivial? Or should it embrace a substantive reading of the fundamental principle of equality between men and women, thus substituting the Court judgment for that of the legislature, and subverting the limits of the ECJ’s powers? The aim of this article is to analyse the ECJ’s rhetorical response to the complexities contained in affirmative action judicial review.     

Parenting in Dependency Drug Court

The Dependency Drug Court (DDC) in Miami, Florida, addresses the needs of families affected by substance abuse through a comprehensive and therapeutic approach. The DDC works with community agencies to provide services that effectively treat the family as a unit. This article discusses the process of adapting a parenting program to meet the needs of families in the DDC.     

法院、法官与司法改革

今天,应邀参加中国人民大学法学院举办的"大法官讲坛",并作首场演讲,我感到十分荣幸.举办这个讲坛很有意义,它可以作为司法理论与实践的结合点,促进我国法学事业的繁荣,促进司法界与法学界的交流.……     

Constitutional courts as promoters of political centralization: lessons for the European Court of Justice

A cross-section analysis covering up to 42 countries and including the usual control variables shows that central government outlays as a share of general government outlays are significantly larger if the judges of the constitutional or supreme court are independent of the federal government and parliament and if the barriers to constitutional amendment are high. This evidence is consistent with the view that constitutional judges have a vested interest in centralization or that there is self-selection or both. These insights are used to draw lessons for the reform of the European Court of Justice. Self-selection should be reduced by requiring judicial experience—ideally with the highest national courts. The vested interest in centralization could be overcome by adding a subsidiarity court.     

The Roberts Court and Police Practices: The Impact of Chief Justice Roberts and Justice Alito in Police Practices Cases

In police practices cases, the Supreme Court decides issues that determine when the law enforcement interest in solving crimes must give way to the interest of individuals to be left alone by the government. The replacement of Chief Justice Rehnquist with John Roberts and Justice Sandra Day O’Connor with Samuel Alito has now been in place for more than four terms. The time is appropriate to assess the likely impact of these two new members of the Court on police practices cases. This article examines that question by analyzing both the police practices opinions written by Roberts and Alito while they served on U.S. Courts of Appeals and their opinions while on the Supreme Court through the 2008-09 term. The conclusion is that the previous pattern of the police prevailing in the vast majority of these cases is unlikely to change. In addition, there is some evidence to suggest that Chief Justice Roberts is aligning himself closely with Justice Scalia in these cases and may be setting the stage for a significant modification or even elimination of the exclusionary rule.     

非政府组织与联合国、国际法院关系比较析论

由于代表着一种市民社会的利益诉求,非政府组织在当今的国际关系与国际法律秩序中的作用与影响力日趋增强。主权国家和主要的国际组织已经不能无视它们的存在。非政府组织与联合国的关系模式可以称之为咨商模式,而与国际法院的关系模式则可称之为咨询模式。对这两种最有代表性的关系模式的分析与比较,有助于廓清非政府组织在当前及今后国际关系中的应然与实然角色问题。