现代法治与民主宪政的金融解释

金融发展对一国的现代法治与民主宪政有着深远的促进作用。金融格局与工商文明构建了现代民主、法治的基石,内生化了市场对法律制度、民主宪政制度供给的需求。欧洲式的现代民主法治的建构与金融市场的发展有着极为密切的联系。正是由于有着与金融财富增长相匹配的金融民主模式,欧美国家的民主宪政得以确立。文章以金融秩序与工商文明的发展为主线,从金融视角,解读中国社会工商文明的系统累积与法律制度供给,金融工商文明的话语体系与思维方式,政府公权力与民间私权利的互动,对深刻理解与构建中国社会的现代法治与民主宪政,具有重要意义。     

我国人事争议仲裁制度建设的回顾、问题和前景

人事争议仲裁制度是具有中国特色的一种权益救济制度。人事争议仲裁制度的发展经历了起步、发展和完善三个阶段,现仍然存在着人事争议仲裁为行政裁决的认识问题以及适用法规层位低、基础理论研究薄弱、受案范围混乱、机构和人员配置不尽合理等实践问题。在完善人事争议仲裁制度成为共识后,完善模式的选择需要比较研究。     

Mapping the fragmentation of the international forest regime complex: institutional elements,conflicts and synergies

In the field of global environmental governance, a plethora of international regimes have emerged over the past decades. In some issue areas, multiple regimes aim to govern the issue, sometimes reinforcing, oftentimes conflicting with each other. Consequently, international regime complexes are an empirical phenomenon, which are inherently characterized by specific degrees of fragmentation. For any given issue area, one of the key questions is whether the institutional fragmentation encountered in such regime complexes is synergistic or conflictive in nature. Scrutinizing this question poses methodological challenges of how to delineate a regime complex and how to assess its fragmentation. Drawing on the highly fragmented case of the international forest regime complex, this paper aims to map its institutional fragmentation and to analyse the degrees to which it is conflictive or synergistic. For this we conceptualize the notion of institutional elements and develop a novel method for mapping regime complexes based on their core institutional elements. We then employ tools from the sub-discipline of policy analysis on the complex’s institutional elements for analysing in detail, which of the elements are mutually synergistic and conflictive with other elements of the regime complex. Our results indicate that synergistic relations mostly exist among rather vague elements, often built around sustainability as a core principle. On the contrary, conflictive relations prevail as soon as the elements are designed in more concrete and substantial ways. We conclude that the forest regime complex displays only degree of seemingly synergistic fragmentation through a number of non-decisions and the use of “sustainability” as an empty formula. De facto, conflictive fragmentation prevails among elements of concrete subject matter. This raises questions on whether vast parts of regime complexes merely serve symbolic functions, while conflicts on substance are being camouflaged.

     

Religion, State Power, and Domestic Violence in Muslim Societies: A Framework for Comparative Analysis

This article focuses on the issue of domestic violence in Muslim societies in the Middle East, Africa, and Asia. The analytical framework is comparative, emphasizing four factors and the interplay among them: shari'a (Islamic law), state power, intrafamily violence, and struggles over women's rights. The comparative approach historicizes the problem of domestic violence and impunity to consider the impact of transnational legal discourses (Islamism and human rights) on "local" struggles over rights and law. The use of shari'a creates some commonalities in gender and family relations in Muslim societies, notably the sanctioning and maintenance of male authority over female relatives. However, the most important issue for understanding domestic violence and impunity is the relationship between religion and state power. This relationship takes three forms: communalization, in which religious law is separate from the national legal regime; nationalization, in which the state incorporates religious law into the national legal regime; and theocratization, in which the national legal regime is based on religious law.     

新权威主义、立宪政体与东亚法治转型

20世纪70年代东亚国家的新权威主义政体在政治集权、经济自由、开放意识形态的基础上实现了经济飞跃和社会发展。虽然新权威主义政体并不排斥民主和法治,且宪法均获得了名义上的权威,但由于经济发展和社会稳定的优先战略,东亚国家政治结构呈现出民主工具主义和"国家主义法治"的症状。在20世纪末期的第三波民主化浪潮中,东亚各国通过立宪主义的方式实现了民主主义的政治转型。     

Justices,Political Actors,or Both: An Exploration of the Brandenburg Line Through the Regime Theory Lens

Regime theory seeks to explain decisions by the Supreme Court of the United States by noting that justices tend to decide cases in ways that align with the prevailing political ideology. The theory emerged from political science literature and has not been explored regarding communication law. This article tests regime theory against the progression of seven Supreme Court precedents that led to the threatening speech test established in Brandenburg v. Ohio. The test is traditionally viewed as the fruit of about a half-century of deliberate judicial evolution. The analysis found regime theory helped explain the Court's progression and decisions in this line of cases, but contained some notable weaknesses.     

State Responsibility for International Humanitarian Law Violations by Private Actors in Occupied Territories and the Exploitation of Natural Resources

Netherlands International Law Review - The interplay between public and private actors in the exploitation of natural resources in an occupied territory makes the regime of state and individual...     

20 Years of global climate change governance research: taking stock and moving forward

International Environmental Agreements: Politics, Law and Economics - Research on global climate change governance is no longer primarily concerned with the international legal regime, state...     

SUPERVISION REGIMES,RISK, AND OFFICIAL REACTIONS TO PAROLEE DEVIANCE*

Parolee deviance has emerged as a central issue in policy debates about crime and punishment in American society as well as in scholarship on “mass incarceration.” Although the prevailing approach to studying parolees conceives of parole violations as outcomes of individual propensities toward criminal behavior (i.e., criminogenic risk), we consider how indicators of individual risk and characteristics of formal social control systems combine to account for reported parole violations. Using data on California parolees, we examine the effects of parolees’ personal characteristics, their criminal histories, and the social organization of supervision on parole violations. We advance the notion of a “supervision regime”—a legal and organizational structure that shapes the detection and reporting of parolee deviance. Three components of a supervision regime are explored: 1) the intensity of supervision, 2) the capacity of the regime to detect parolee deviance, and 3) the tolerance of parole officials for parolee deviance. We find that personal characteristics and offense histories are predictive of parole violations. However, we also find that introducing supervision factors reduces the effects of offense history variables on violation risk, suggesting that the violation risks of serious, violent, and sexual offenders are partially explainable through the heightened supervision to which they are subject. In addition, we find that supervision intensity and tolerance are generally predictive of violation risk. Capacity effects are present but weak. We conclude with a discussion of how the supervision regimes concept illuminates the gap between macro‐ and micro‐analyses of social control.     

Past and future of burden sharing in the climate regime: positions and ambition from a top-down to a bottom-up governance system

International Environmental Agreements: Politics, Law and Economics - Historically, burden sharing of mitigation in the climate regime was operationalized as a binary division of the world between...     

Re-calibrating,re-visioning and re-thinking self-regulation in Canada

Several jurisdictions, most notably Australia and the United Kingdom, have recently abandoned a regime of self-regulation of the legal profession. In this paper the authors review recent developments in Canada to argue that there has been a significant increase in the regulatory vigour of law societies and suggest that, at least in part, this is driven by the fear of losing self-regulation. In the latter part of the paper the authors then attempt to assess whether defensive self-regulation is working and propose an evaluative scheme and series of metrics by which to assess effectiveness and efficiency of a regulatory regime. They conclude by suggesting an innovative institutional mechanism that would have the legitimacy and capability to perform such an assessment.     

Legal Education Beyond the Academy: The Neoliberal Reorientation of Public Legal Education

Law and Critique - In order to re-make the world in its own image, neoliberal expansionism is predicated on the dominance of a particular regime of reason. The dominance of economic-juridical...     

Evaluation of the UNFCCC Technology Mechanism’s contribution to an international climate policy framework

International Environmental Agreements: Politics, Law and Economics - The Paris Agreement, adopted in 2015, is ushering in a new climate regime. Owing to the increasing importance of technology...     

Punishment,Liberalism, and Public Reason

The article argues for a conception of the justification of punishment that is compatible with a modern, politically liberal regime. Section I deals with what some have thought are the obvious social interests society has in punishing criminals, and tries to develop those possible interests somewhat sympathetically. Section II suggests that many of those reasons are not good ones if punishment is regarded (as it should be) from the perspective of political philosophy. Social responses to bad things happening to people cannot be grounded in controversial metaphysical views about what is good for people or what people deserve, but many reasons proffered for punishment are in fact grounded in such views. This constraint, accordingly, limits what individuals can expect in terms of a societal response to crime. Section III develops the appropriate reasons for punishment in a modern, liberal regime. Here the article relies on a—largely undefended—conception of public reason as the most plausible theory of what reasons for punishment are available to liberals. Section IV offers some closing thoughts on why people might adopt a politically liberal view about punishment as their own, personal view about how they should relate to others.     

政体演化的历史类型——一种理想类型方法论的视角

政体演化的理想类型与法的现象历史演进模式密切关联。划分政体的历史类型的标准是政体赖以建立的社会经济结构及其人与人之间的关系模式。人类社会的政权组织形式可以划分为集权政体、分权政体和整合型政体三种理想政体类型。建立在自然经济和人对人的依赖关系基础之上的政权组织形式是集权政体类型;建立在商品经济和人对物的依赖关系基础上的政权组织形式是分权政体,而整合政体则表现为古希腊的雅典民主政体、古罗马共和政体以及初级阶段社会主义的人民代表大会政体。     

The Rule of Law in Fragile States: Dictatorship,Collapse, and the Politics of Religion in Post-Colonial Somalia

The fate of the rule of law in fragile states rests in religious politics. Three defining periods of Somali politics illustrate this argument. First is the authoritarian regime of Mohamed Siad Barre in Somalia (1969–1991). This dictatorship used religion to rule by law. The regime executed religious leaders for disagreeing with the government's interpretation of Islam. Second is the rise of Islamic courts in Mogadishu, Somalia's capital city (1991–2007). The Islamic courts apprehended criminals, expelled warlords, and provided spaces for Somalis to resolve disputes peacefully. Third is the breakaway of Somaliland (1991–present). Somaliland has advanced Islamic legal principles to build peace and constitutional law. Taken together, these three periods demonstrate how religious politics transform law and society.     

“Human Habitation or Economic Life of their Own”: The Definition of Features Between History,Technology and the Law

Liverpool Law Review - Article 121(3) of the United Nations Convention on the Law of the Sea (UNCLOS) establishes the regime of geographical features. It distinguishes the island from...     

The Open Architecture of European Human Rights Law

The evolution of the European human rights regime is often described as the development of an integrated order with the European Convention of Human Rights as its governing 'constitutional instrument'. It is argued that the regime is better regarded as pluralist - characterised by a heterarchical relationship between its constituent parts that is ultimately defined politically and not legally. The emergence and workings of this pluralist order are traced through the interaction of the European Court of Human Rights with domestic courts in the European Union. These cases not only show conflicts over questions of ultimate supremacy but also significant convergence and harmony in practice. The analysis of the factors leading to this convergence indicates that central characteristics of pluralism – incrementalism and the openness of ultimate authority – have contributed significantly to the generally smooth evolution of the European human rights regime. This suggests a broader appeal of pluralist models as alternatives to constitutionalism in the construction of postnational authority and law.     

哈富论战、拉德布鲁赫公式及纳粹法制迷案——从历史视角透析理论问题

五十年前的哈富论战不仅活跃了当时的学术环境,也为法哲学领域留下了许多值得反复推敲的理论难题,而其中关于纳粹统治下的司法疑难问题的讨论,多年来常常引起许多涉及范围甚广的争议。本文就是试图立足于从更广阔的历史视角出发,考察哈富论战中相关的理论问题,对以告密者案件为代表的纳粹法制迷案进行更加细致的梳理,进而对哈特、富勒与拉德布鲁赫的学说背景加以重述,澄清有关的历史观念问题,并据此对相关理论问题的属性进行一些分析。