Democratic Legitimacy and the International Criminal Court: A Liberal Defence

In response to the criticism that the International CriminalCourt is undemocratic, this article outlines a liberal conceptionof institutional legitimacy and defends its appropriatenessas a moral foundation for the International Criminal Court.In contrast to a communitarian concept of democracy (which seesdemocracy as an expression of the general will), liberals seepolitical legitimacy as stemming from a respect for fundamentalhuman rights. Thus, as long as the International Criminal Courtrespects the right of the accused to a fair trial, then it isa legitimate institution.     

Expanding the Constitution Beyond the Court: The Case of Euro-Constitutionalism

The paper addresses the role of the Court of Justice in the European integration process, as well as, more broadly, tensions between constitutionalism and new governance. I propose an account, according to which the judiciary should not be seen as standing in an aloof place in the political order, and as opposed to a—pluralistic, irrational, and anarchical—society, but rather as part of a continuum on which other governance arrangements are also placed according to their share in 'tribunality'—the deliberativeness of their decision-making processes and their openness to new facts.     

Response to Criticism: Police Legitimacy,Beyond the Entrenched Niches of Expertise

The purpose of this article is to first re-state the key points of the rejoinder by Cao and Graham. It then proceeds to defend and clarify the arguments that we have made in our article by raising a few misinterpretations by the two reviewers. I end this article with an advice from John Braithwaite 30 years ago that we should nurture the new endeavors in criminology instead of being united against such undertakings.

     

Faith in the Court: Religious Out‐Groups and the Perceived Legitimacy of Judicial Decisions

The question of whether judges’ personal characteristics and values bias their decision making has long been debated, yet far less attention has been given to how personal characteristics affect public perceptions of bias in their decision making. Even genuinely objective judges may be perceived as procedurally biased by the public. We hypothesize that membership in a religious out‐group will elicit stronger public perceptions of biased decision making. Using a survey experiment that varies a judge's religious orientation and ruling in a hypothetical Establishment Clause case, we find strong evidence that judges’ religious characteristics affect the perceived legitimacy of their decisions. Identifying a judge as an atheist (a religious out‐group) decreases trust in the court, while identifying the judge as a committed Christian has no bearing on legitimacy. These results are even stronger among respondents who report attending church more often. Thus, we argue that perceptions of bias are conditioned on judges’ in‐group/out‐group status.     

Black Hole of Responsibility: The Adjudication Committee's Role in a Chinese Court

How courts and judges in authoritarian regimes decide cases behind closed doors has rarely been studied, but it is critically important in comparative judicial studies. Primarily drawing on the minutes of the adjudication committee in a lower court in China, this article explores its operational patterns and decision‐making process. The data suggest that among the criminal cases reviewed by the committee, very few were difficult or significant, but a relatively high percentage of the suggested opinions of the adjudicating judges was modified. In contrast, many civil cases reviewed were difficult to resolve but the committee offered little assistance. Overall the operation and decision‐making of the committee were subsumed by the administrative ranking system inside the court and the authority of the court president was enormous. The analysis also demonstrates the limited role of the committee in both promoting legal consistency and resisting external influences. Instead of achieving its declared goals, the committee has degenerated into a device for both individual judges and committee members to shelter responsibility. The findings compel researchers to reevaluate the role of the adjudication committee in Chinese courts, and the relationship between judges and authoritarian regimes.     

全球治理的法律渊源及其合法律性问题

全球治理的重要特征是多元规制,这一特点对全球化时代的法律的概念和法律渊源问题提出了挑战,针对这种挑战的三种解决途径即由约束力的区别来确定硬法和软法、按照法律制度化的程度来区分各种法律渊源、依据世界民主公法来界定各层次的法律渊源都要求对全球治理的法律渊源提出某种规范性要求。相对于这种规范性要求的实质性方面,通过合法律性这个概念来表述这种规范性要求是更适当的,并且在此意义上,合法律性也呈现了全球治理法治化这种规范性主张的必要条件和相应的局限性。     

Dissent,Legitimacy, and Public Support for Court Decisions: Evidence from a Survey‐Based Experiment

Scholars often argue that whereas unanimous rulings should boost public support for court decisions, dissents should fuel public opposition. Previous studies on public responses to U.S. Supreme Court decisions suggest that unanimity does in fact bolster support. However, a recent study has also found that dissents may increase support among opponents of a court decision by suggesting evidence of procedural justice. By examining how individuals react to dissents from the Supreme Court of Norway, this article is the first study outside the U.S. context of the public's reaction to unanimity and dissent. Breaking with the common notion of the negative effects of dissent on public support, the article shows that when the Supreme Court handles cases of higher political salience, the formulation of dissenting opinions can be a meaningful way of securing greater support for its policy outputs by suggesting evidence of procedural justice. Contrary to recent studies, however, this positive influence of dissent is irrespective of individuals' ex ante policy views.     

Heir, Celebrity, Martyr, Monster: Legal and Political Legitimacy in Shakespeare and Beyond

The seventeenth century placed Western political thought on a path increasingly concerned with ascertaining the legitimacy of a determinate individual, parliamentary or popular sovereign. As early as Shakespeare, however, a parallel literary tradition serves not to systematise, but to problematise the discourses used to assert the legitimacy with which control over law and government is exercised. This article examines discourses of legal and political legitimacy spawned in early modernity. It is argued that basic notions of ‘right’, ‘duty’, ‘justice’ and ‘power’ (corresponding, in their more vivid manifestations, to categories of ‘heir’, ‘celebrity’, ‘martyr’ and ‘monster’) combine in discrete, but always encumbered ways, to generate a variety of legitimating discourses. Whilst transcendentalist versions of those discourses begin to wane, their secular analogues acquire steadily greater force. In addition to the Shakespearean histories, works of John Milton, Pierre Corneille, Jean Racine, Friedrich Schiller and Richard Wagner are examined, along with some more contemporary or ironic renderings.

The Strasbourg Court and Indirect Race Discrimination: Going Beyond the Education Domain

Prohibiting indirect discrimination has been hailed as guaranteeing substantive equality by addressing issues of structural discrimination and inequalities in a way that direct discrimination cannot and will not. However, Article 14, the ECHR's non‐discrimination provision, does not distinguish between direct and indirect discrimination. Only in 2007 the European Court of Human Rights explicitly included the notion of indirect (race) discrimination under Article 14 in DH and Others v Czech Republic, its famous judgment on Roma education segregation. Since then it has applied the prohibition of indirect race discrimination in a limited manner to similar education cases. However, in its recent Grand Chamber decision, Biao v Denmark, the Strasbourg Court started clarifying some unsolved issues in the distinction between direct and indirect discrimination in its case law and finally applied the concept to the much broader area of immigration and citizenship.     

全球公司治理趋同背景下的中国公司治理模式选择

“大象难以藏身於树後。”现代社会是公司社会，造句话形象地描述了公司在现代经济生活中的巨大影响力。无论是那些巨无霸的跨国公司个体，还是作为社会主要经济体的公司企业群，其治理水平如何，不仅深刻影响公司自身的运营状态与存在目的，     

法院院长职权结构优化论——基于《法院组织法》与《民事诉讼法》衔接的考量

法院组织理论与诉讼原理具有深刻内在联系,从《法院组织法》与《民事诉讼法》相衔接视角考察我国法院院长职权的层级结构,可以为全面深化司法体制改革提供理论支撑。大陆法系普遍认可法院院长具有适度的司法行政权,并以不侵害审判核心事务行使为前提。就我国现实而言,法院院长职权重塑的逻辑前提是审判业务与司法行政事务科学分类。对法院院长职权应划分为审判职权、司法行政职权。在审判职权行使方面遵循与法官同权原则,限制院长程序性决定权,确立院长审案分案的一般规则及动态调整机制;司法行政职权则应保持谦抑,开列院长司法行政职权清单有助于预防权力跨界。     

Court Finance and Court Responses to Judicial Reforms: A Tale of Two Chinese Courts

This research studies the responses of two lower-level courts, one in rural and the other in urban China, to recent judicial reforms focusing on strengthening institutional building and professionalism. It finds that the court-funding structure under which the courts heavily rely on the local government for expenses, together with the unbalanced development of local economy, remarkably affects the two courts' behavioral pattern in different ways. The rural court, for the sake of litigation fees, tries to attract potential litigants to file certain lawsuits, even though it cannot effectively handle them. The efforts toward institutional building and professionalism only aggravate the already difficult situation. The urban court's institutional quality seems to have increased in the reform process, thanks to sufficient resources from the developed and diversified local economy. But it has also become more formalized and bureaucratic, as it tries to exclude difficult and problematic disputes from getting into the court. In illustrating the complexity of transitional China's judicial reform process generated by both the unbalanced economic development and the bureaucratization of the judiciary, this article suggests that the enhancement of institutional quality, which many argue is key to economic development, may itself be contingent upon the success of economic development.