Democracy,social capital and school governing bodies in South Africa

Critics of school governing bodies (SGBs) – both on the left and on the right – tend to rely upon arguments that ignore significant portions of the act that created SGBs – the South African Schools Act (SASA) – the exact nature of the changes to SGBs wrought by amendments to the act and the manner in which the courts, in interpreting the act, have both reinforced the autonomy of SGBs at the same time as they have set limits on those powers. The authors’ reading takes seriously all of the provisions of SASA, its amendments and various court constructions of SASA's provisions. This close reading of the South African Constitution, SASA, SASA's amendments and the case law reveals the lineaments of a fourth level of democratic government. Even with their uneven success as a fourth tier of democratic government, SGBs reflect, in many respects, the most important interactions that citizens have with the state. The authors contend that SGBs provide a vehicle for popular political participation that is quite real, and that participation is made no less real by the strictures imposed upon them by South Africa's constitutional and regulatory order. Despite concerns about their lack of capacity, SGBs enjoy popular acceptance and participation across class and language divides. The legal status of SGBs does not merely enhance various forms of local democracy, SGBs also maintain and create effective social networks that generate new stores of social capital. The ability to provide new forms of democratic participation and to create new stores of social capital suggests that SGBs have the makings of a great, new and rather unique ‘South African’ political institution.     

Participation and Judicial Review: A Reply to Jeremy Waldron

This article challenges Jeremy Waldron'sarguments in favour of participatorymajoritarianism, and against constitutionaljudicial review. First, I consider andcritique Waldron's arguments againstinstrumentalist justifications of politicalauthority. My central claim is that althoughthe right to democratic participation isintrinsically valuable, it does not displacethe central importance of the `instrumentalcondition of good government': politicaldecision-making mechanisms should be chosen(primarily) on the basis of their conducivenessto good results.I then turn to an examination of Waldron'sclaim that individuals are entitled toparticipate in decisions which affect theirlives. Furthermore, I respond to his claimthat justifications of constitutional judicialreview rely on an objectionable distrust ofdemocratic politics, and is inconsistent with aview of the person as a morally responsible,autonomous agent. Finally, I seek to show thatjudicial review can itself become a valuablechannel of political participation, especiallyfor those who are marginalized and disempoweredin the normal political process.     

The effect of faith program participation on prison misconduct: The Life Connections Program

Faith-based programming is one of many potential tools for preparing inmates for successful reentry into society. The current study used official records of inmate misconduct and attitudinal survey data to investigate whether participation in a faith-based program reduced the likelihood of prison misconduct. The results indicated that program participation did lower the probability of engaging in serious forms of misconduct. No effect was discovered, though, for less serious forms of misconduct or for both types of misconduct considered simultaneously.     

试论网络参与下的政府决策

公民参与政府决策是公共决策科学化、民主化的客观要求。随着网络技术的发展,网络参与作为公民参与政府决策的一种新方式,越来越成为公民政治参与的有效途径。因此,探索在网络参与环境下如何趋利避害,使公共决策更加科学、合理、民主并符合社会全体成员的需要,具有重要的现实意义。本文以政府决策为研究对象,以网络参与为研究视角,通过案例实证分析,探讨了网络参与和政府决策之间从冲突走向协商的可能性和途径,以期引起学术界对此问题的进一步研究和思考。     

How Democratic is Civil Disobedience?

In her book, Conscience and Conviction, Kimberley Brownlee argues that there is nothing undemocratic about the robust, primary right to civil disobedience that she devotes most of her argument to defending. To the contrary, she holds that there is nothing paternalistic about civil disobedients opposing the will of democratic majorities, because, inter alia, democratic majorities cannot claim particular epistemic superiority, and because there are flaws inherent to democratic procedures that civil disobedience addresses. I hold that Brownlee’s arguments fail. In particular, her argument fails because it does not properly construe the nature of the epistemic claim that can be made either by democratic procedures or by civil disobedients, and because it illegitimately conflates the concern about permanent minorities that has been a constant thorn in the side of democratic theorists, with a concern with all outvoted minorities, whether permanent minorities or not.     

Popular Constitutionalism's Hard When You're Not Very Popular: Why the ACLU Turned to Courts

Through a case study of the early American Civil Liberties Union (ACLU), this article examines the empirical ramifications of constitutional scholars' recent exhortations to "take the Constitution away from the courts" in order to promote democratic deliberation about constitutional meaning. While it is now one of the most prominent examples of a litigation-based interest group, the ACLU began its existence demonstrating a commitment to constitutionalism outside the courts. Through coding a decade's worth of meeting minutes and examining archival sources, I demonstrate that the ACLU's mounting unpopularity rendered extrajudicial politics impossible, precipitating the ACLU's shift toward litigation. The ACLU's move toward litigation, despite its early devotion to political activism outside the courts, suggests that it is not always possible for political actors to make constitutional arguments without courts. Furthermore, the ACLU's use of courts to publicize and dramatize its constitutional arguments demonstrates that litigation may actually promote popular deliberation about constitutional meaning. These political realities both highlight and contradict two empirical assumptions underlying arguments about the normative desirability of restricting courts' involvement in constitutional politics. First, the state is not a neutral arena in which all political actors are equally free to pursue their constitutional visions through majoritarian processes. Second, courts may facilitate (rather than hinder) popular deliberation about constitutional questions.     

Ethics of Disenfranchisement and Voting Rights in the U.S.:Convicted Felons,the Homeless,and Immigrants

This paper examines the contemporary ethical issues surrounding voting rights of three disenfranchised groups in the U.S.: convicted felons, the homeless, and immigrants. Even in modern countries like the U.S., voting and other forms of political participation are skewed toward the elite, those with higher incomes, those who are employed, and those with more education. Low voter turnout presents serious challenges to democratic responsiveness, or the ability of leaders to respond to the needs and demands of citizens. Hence, voting should be encouraged in accord with the common interest. An important conclusion is that allowing all citizens – irrespective of their status – to vote would give them a voice in the context of governance. This notion is also associated with distributive justice, a philosophical concept that concentrates on just outcomes and consequences.     

论经济规制立法的正统性

现代国家的规制系统往往是复杂而庞大的。在政府对经济的规制中,应当否定和废止的规制大量存在,同时,应当肯定和强化的规制同样大量存在。本论文将视角锁定在经济规制立法的正统性分析上,着重探讨如何在立法和制定政策的过程中实现意思决定的科学性、专门性,强调对各种信息的梳理、排除和活用,围绕立法和政策制定的科学公正性和社会公正性以及由此而得以确保的社会可靠性展开探讨,在民主参与、专门性输入及评价、救济等专门性保障的意义上,来构筑规制立法和政策形成的正统性。     

Inalienable Rights: A Litmus Test for Liberal Theories of Justice

Liberal-contractarian philosophies of justice see the unjust systems of slavery and autocracy in the past as being based on coercion—whereas the social order in modern democratic market societies is based on consent and contract. However, the ‘best’ case for slavery and autocracy in the past were consent-based contractarian arguments. Hence, our first task is to recover those ‘forgotten’ apologia for slavery and autocracy. To counter those consent-based arguments, the historical anti-slavery and democratic movements developed a theory of inalienable rights. Our second task is to recover that theory and to consider several other applications of the theory. Finally, the liberal theories of justice expounded by John Rawls and by Robert Nozick are briefly examined from this perspective.     

Revisiting Informal Justice: Restorative Justice and Democratic Professionalism

Restorative justice is a form of informal justice growing rapidly among criminal justice practitioners. It decenters the focus of criminal justice from the offender breaking a law of the state to the harm caused the victim and community. Resolution is said to come from offenders taking responsibility and making amends for the harm done and from communities supporting the victim and providing offenders with opportunities and skills to reintegrate as contributing members.
Restorative justice theory largely ignores the role of professionals in the criminal justice process, and yet professionals have played a dominant part in initiating many restorative justice programs. Several theoretical traditions recognize professionals as being important intermediaries between citizens and the state. The theory of democratic professionalism argues that professionals can play crucial roles in increasing and improving democratic participation in public affairs. This article examines two functioning restorative justice programs to flesh out what democratic professionalism might look like in operation—what tasks professionals perform and what citizen involvement means to the professionals. We argue that restorative justice cannot get along without professionals and that democratic professionalism may help restorative justice to avoid some of the problems associated with other approaches to informal justice by increasing true community participation but balancing it with concern for individuals' rights.     

中国与欧洲公众环境参与权的比较研究

公众参与权的保障与实现程度直接关系着民主决策的科学性和有效性,关系着全面建设社会主义现代化国家的进程。针对环境问题而言,如何从法律理论与实践两个层面更有效地回应公众的“参与权”,值得深入研究。相较而言,欧洲的相关法律制度走在世界前列,从纵向发展的视角来看,中国和欧洲在保障公众环境参与权的进程以及所面临的挑战方面有着相似之处,欧洲经验对我国有着极其重要的借鉴作用。中国和欧洲公众环境参与权有着不同的理论基础、历史发展进程、参与范围、参与层次、参与阶段以及支持者。基于这些相似性和不同点,立足于中国的具体国情和实际,欧洲公众环境参与权保障法律机制能为我国解决类似挑战提供一些可能路径。     

Towards the development of ethical practices in paediatric clinical trials: the special position of the terminally ill child

This article examines the emotive and vexing issue of the involvement of terminally children in paediatric clinical trials. Particular emphasis is placed on the participation of such children in Phase I clinical studies, as such studies do not yield any benefit to the individual child. It provides an historical overview of medical research involving children and examines the moral arguments surrounding the participation of children in clinical trials. The article examines the conflict between doctor-as-researcher and doctor-as-treater as well as the problems presented by proxy consent providers. The role played by the human research ethics committee in this area is examined, as is the regulatory framework established by the National Health and Medical Research Council. The article argues that the participation of terminally ill children in Phase I clinical trials is not morally repugnant provided that there is a total commitment to the protection of the child participant's well-being during the dying process. It is argued that the moral justification for such position derives from the utilitarian notion that participation in such studies aims to benefit future generations of ill children.     

司法最低限度主义——评桑斯坦的《就事论事——美国最高法院的司法最低限度主义》

为证立司法审查制度的正当性,美国学界以往司法审查理论认为,代议制民主过程不可信任,必须由司法权对民主立法进行有效的宪法监督,以保障民主价值目标的实现.桑斯坦则认为,民主过程固然不可信任,但由于司法能力的有限性,最高法院应采取一种最低限度主义的裁决方法,一次一案式地裁决具体案件,避免原则性判决,将社会价值选择问题交由民意机关互动协商解决,以减少错误判决可能导致的严重社会后果,同时培养民意机关的民主协商精神和公民的参政素质,塑造一个健康民主的社会.与其他司法审查理论相比,司法最低限度主义更有效地论证了司法审查制度的正当性.不过,这一理论本身也有其缺陷.     

The Strange Revival of Bicameralism

The turn of the twenty-first century witnessed a surprising reversal of the long-observed trend towards the disappearance of second chambers in unitary states, with 28 countries – all but one of them unitary – adopting the bicameral system. This article explores this development by first setting it in the context of the historical evolution of second chambers and the arguments that support bicameralism, and then exploring the characteristics that distinguish today's second chambers from first chambers. A ‘census’ of second chambers in 2014 is used to provide data on second chambers in federal and unitary states, to facilitate comparison with earlier data, and to distinguish between ‘new’ and longer-established second chambers. The article concludes that newly established second chambers are concentrated predominantly in political systems where liberal democratic principles are not established, suggesting that the debate over their role in democratic states is set to continue.     

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”.     

协商民主理念下加拿大公众参与环境法律实施的路径选择及对我国的启示

协商民主相对于参与民主而言,通过理性的协商对话消除冲突等不和谐因素,实现公共利益,更强调参与的深度。加拿大特有的国情为协商民主的实现提供了良好的氛围,公众参与环境法律实施是其环境法制革新的民主化方向,公众以政府与公民社会新型关系的参与路径确保协商主体的平等性;公众以环保专业知识、传统生态知识参与路径促进理性协商;公众以环保社团参与路径为主确保协商的团体优势;公众的全方位救济途径确保协商民主的有效性。当前我国在协商民主大环境下,公众参与环境法律实施路径应该变"被动参与"为"主动实施";变"松散参与"为"社团参与";变"无为参与"为"专业参与";变"单一救济"为"多元救济",从而实现积极、有序和有效的公众参与环境法律实施。     

从公民参与看东亚民主转型

西方演进型民主的发展历史,昭示出自下而上的力量在通往民主的道路上扮演了不可或缺的角色。这种力量表现在民主运动中便是公民以不同形式对民主政治的参与。东亚国家和地区在民主转型过程中同样体现了这样一种趋势。民主参与不仅是一种政治活动,还是公民的基本权利,即参政权。转型社会的参与类型较为复杂,主要包括制度性参与、合法的非制度性参与和非法的参与。在权威政体松动、开始推行民主化之后,公民会逐渐远离非法的制度外参与。     

Penal Disenfranchisement

This paper considers the justifiability of removing the right to vote from those convicted of crimes. Firstly, I consider the claim that the removal of the right to vote from prisoners (or serious offenders) is necessary as a practical matter to protect the democratic process from those who have shown themselves to be untrustworthy. Secondly, I look at the claim that offenders have broken the social contract and forfeited rights to participate in making law. And thirdly, I look at the claim that the voting ban is essential part of the justified punishment of serious offenders. These arguments have in common the feature that they attempt to articulate the sense in which rights imply responsibilities, particularly that voting rights should be conditional on one’s having met one’s civic responsibilities. I argue that the only interpretation of this view that could justify prisoner disenfranchisement is that which thinks of disenfranchisement as fair and deserved retributive punishment for crime. Against widespread opposition to, and confusion about, the importance of retributive punishment, I offer a brief defence. However, I conclude that even if legitimate retributive purposes could in principle justify prisoner disenfranchisement, the significance of disenfranchisement is such that it should be reserved for the most serious crimes.     

司法审查：一种动态民主的机制

从代议民主的角度看,司法审查和民主之间确实存在着矛盾,美国司法审查的几种理论路径不能解释清楚司法审查正当性的问题,伊利的程序主义理论回避司法审查合法性的实体问题即国会立法违背宪法的客观标准为何,宪法文本的不确定性使得司法审查的客观标准成为一个难题,但是如果从动态的民主参与方面看,对国会立法进行违宪审查的目的是建立一种动态的参与民主机制,在代议民主和大众之间建立沟通的桥梁,使民众的话语得到张扬,让民主运转起来,故美国确立司法审查的理论基础是动态的参与民主机制。     

“民主服务民生”机制的模式创新与路径选择——基于杭州市的实践分析

＂民主服务民生＂是在现有社会管理体制内,政府通过鼓励多元主体进行民主参与、民主协商、互动合作等方式,是把发展民主与改善民生相结合,以民主途径解决民生问题的工作机制。杭州市的实践模式表明：作为社会管理创新模式,＂民主服务民生＂机制不但为城市社区自治提供了新思维,而且为缓解城市化进程中的复杂问题、协调社会各阶层关系、缓解社会矛盾提供了新路径,并对维护社会稳定和中国特色的民主建设有着积极的意义。针对＂民主服务民生＂机制的内在需求,本文提出了完善这一机制的对策。