社会理论中的惩罚:道德过程与权力技术

惩罚是法律与社会理论中的一个重要论题。在惩罚问题上,涂尔干和福柯对于近代以来残酷惩罚的衰落,以及从酷刑到监禁的历史变迁都做了分析,并且都触及到国家权力与个人权利相互加强、螺旋上升的现代趋势。而在分析思路和认知态度上,二人却表现出明显不同。关于惩罚,涂尔干坚持一种道德观点,视惩罚为道德过程,而福柯则坚持一种政治观点,视惩罚为权力技术。由这两种不同的典型观点,可以洞察人和国家在现代社会所遭遇的道德和政治困境。就此困境而言,在现代进程中,维护和加强人和国家的道德向度显得尤为必要。     

Fifty years of organ transplants: the successes and the failures

More than fifty years have now passed since the first successful human organ transplant. During that time, substantial progress has been made in both surgical techniques and immunosuppressive drug therapy. As a result, transplant success rates have improved dramatically, and thousands of recipients of kidneys, hearts, livers, and lungs have been granted both longer and healthier lives. At the same time, however, many more thousands of patients have died while waiting in vain for a cadaveric donor organ to become available due to a severe and persistent shortage of such organs. That shortage, in turn, is directly attributable to the National Organ Transplant Act of 1984, which proscribes payment to potential organ donors, even if that would increase supply. This atavistic policy and the shortage and deaths it has spawned provides a stirring example of the tendency for public policy to lag behind technological advancement, particularly in the medical field. But the tide of medical opinion may be turning on this issue, and some form of donor payments may soon emerge.     

公共惩罚与私人惩罚的互动——一个解读法律制度的新视角

公共惩罚与私人惩罚既相互排斥又相互补充,公共惩罚与私人惩罚的互动可以作为一个解读法律制度的视角。国家为维持法律实施的垄断,通常会对私人惩罚手段(尤其是私人暴力)进行限制,但为节省公共惩罚资源的支出,法律又必须在某些场合容忍甚至利用私人之间的监控与惩罚,公共惩罚资源的有限性迫使国家把私人之间的监控和惩罚视为一项重要的社会控制资源。法律制度的设计应当充分发挥公共惩罚和私人惩罚的比较优势,合理划分公共控制区域和私人控制区域,并努力追求社会控制总成本(即公共控制成本和私人控制成本之和)的最小化。西方近代政治的古典自由主义、中国古代政治的消极无为主义以及公法与私法的区分都在一定程度上体现了这一原则。     

Explaining School Corporal Punishment: Evangelical Protestantism and Social Capital in a Path Model

School corporal punishment is associated with many negative outcomes. This research explores the antecedents to the practice and prevalence of school corporal punishment. A series of regression models indicated that two variables were significant predictors of a state’s practice of school corporal punishment: rate of evangelical Protestant adherents and social capital. A path analysis indicated that these two variables significantly predicted the rate of school corporal punishment in practicing states. The path analysis also revealed a significant and negative relationship between rate of evangelical Protestant adherents and social capital, but no relationship between rate of mainstream Protestant adherents and social capital. A mediation analysis indicated that social capital serves as a mediating variable between evangelical Protestantism and rate of school corporal punishment. Practical and theoretical implications are discussed.     

Justice and intergenerational relations: An introduction

Gerontologists have rarely considered the concept of social justice in their research. Instead, related but more specific questions about the social situation of the aged have been posed. This paper provides an overview of existing social psychological literature on justice and intergenerational relations as a context for the five other papers contained in this issue. The importance of intergenerational justice within the family, particularly when there is a caretaking relationship, is stressed. As well, the policy implications of a concern with intergenerational justice are considered. The Paper concludes with a recommendation that gerontology and social justice research be integrated more frequently in order to enrich both fields of study.     

Social and legal control in China: a comparative perspective

This article exposes the reader to a different social and legal control system and a different way of thinking about crime--that of China. Chinese think positively about the nature of humans and their potential, and China's social control system weaves together a unique combination of formal and informal mechanisms with a strong emphasis on the latter. The criminal justice system constitutes a key element of the social control system, but it appears to be more of a last resort. It is hoped that through a comparative analysis, the reader can develop a deeper understanding of different social and legal systems.     

Punishing Cruelly: Punishment, Cruelty, and Mercy

What is cruelty? How and why does it matter? What do the legal rejection of cruelty and the requirements of mercy entail? This essay asks these questions of Lucius Seneca, who first articulated an agent-based conception of cruelty in the context of punishment. The hypothesis is submitted that the answers to these questions offered in Seneca’s De clementia constitute one of the turning points in the evolution of practical reason in law. I conclude, however, by arguing that even the mainstream punitive practices of contemporary western societies fail to meet the modest imperatives of the rejection of cruelty and the unconditionality of mercy propounded by Seneca.     

The Chimera of Proportionality: Institutionalising Limits on Punishment in Contemporary Social and Political Systems

The concept of proportionality has been central to the retributive revival in penal theory, and underlies desert theory's normative and practical commitment to limiting punishment. Theories of punishment combining desert‐based and consequentialist considerations also appeal to proportionality as a limiting condition. In this paper we argue that these claims are founded on an exaggerated idea of what proportionality can offer, and in particular fail properly to consider the institutional conditions needed to foster robust limits on the state's power to punish. The idea that appeals to proportionality as an abstract ideal can help to limit punishment is, we argue, a chimera: what has been thought of as proportionality is not a naturally existing relationship, but a product of political and social construction, cultural meaning‐making, and institution‐building. Drawing on evolutionary psychology and comparative political economy, we argue that philosophers and social scientists need to work together to understand how the appeal of the idea of proportionality can best be realised through substantive institutional frameworks under particular conditions.     

日本死刑若干问题思考

前言法国著名作家、哲学家阿尔伯特·加缪 1 957年发表《断头台的反思》①一文 ,讲述他父亲的一则故事。加缪虽没有见过父亲 ,但这则轶闻不但使他了解了父亲 ,而且痛感死刑的荒诞性。文章要义如下 :第一次世界大战后不久 ,在阿尔及尔发生一起耸人听闻的案件 :一个村民的全家包括父母和孩童全部被人残忍地杀死 ,财物也全部被掳走。凶手也是一个村民 ,被阿尔及尔法庭判处死刑。人们说 ,即使把这个恶魔斩首 ,也太轻饶他了。加缪的父亲也这样认为 ,并为那些被杀害的幼小孩童深深痛惜。因此 ,他平生里第一次决定去亲睹处决凶手的现场。他半夜起来…     

Household composition,routine activity,and victimization: A comparative analysis

Adults living in single-parent households report high rates of personal and household victimization. Data from the 1982 British Crime Survey and from the 1983 Victim Risk Supplement to the U.S. National Crime Survey are used to determine whether this higher risk is due to particular patterns of routine activity among members of single-parent households. Findings indicate that these persons are disproportionately victimized by present or former spouses. Often unemployed, they are at greatest risk in the home domain. Deleting close prior relationship incidents eliminates the effects of household composition on personal victimization and produces logit models that are similar for the U.S. and British surveys.     

Framing Capital Punishment in Japan: Avoidance,Ambivalence, and Atonement

This article examines how two of Japan’s largest newspapers frame death penalty issues. Through a content analysis of 7,153 Asahi and Nikkei articles in the 66-month period from January 1, 2007 to June 30, 2012, 11 death penalty frames are identified: inevitability, atonement by dying, atonement by living, victims’ rights and emotions, human rights, miscarriage of justice, calls for discussion, life without parole, deterrence, public support, and retribution. In addition to frames, we examined who the main voices are in each article on capital punishment. We found that avoidance and ambivalence are the two main approaches taken by Asahi and Nikkei to cover death penalty issues, and the most surprising finding is the high salience of atonement as a frame for thinking about capital punishment. In Japan, atonement is used to justify (atone by dying) and oppose (atone by living) the death penalty. Although atonement by living in prison and atonement by dying at the gallows imply radically different outcomes, the flexibility of the atonement frame may suggest new possibilities for Japan’s anti-death penalty movement.     

Fifty years on: against the stigmatising myths, taboos and traditions embedded within the Suicide Act 1961 (UK)

Although assisted suicide carries a maximum of 14 years imprisonment in England, courts and juries have historically demonstrated a reluctance to convict, most specifically in relation to those travelling abroad to accompany a terminally ill person seeking assisted dying. The possibility of prosecution is still present, however, and there have recently been a number of challenges to the law on assisted dying. During the consultation period of the Coroners and Justice Act 2009 (UK) an amendment was proposed that would have legalised, among other things, assisting suicide overseas. However, it was voted down by peers who believed it to be dangerously radical. In 2008 a multiple sclerosis sufferer requested a clear policy statement, should her partner help her to seek assisted dying abroad in the future. After her application was initially rejected, Mrs Purdy was granted leave to appeal and following a favourable ruling by the House of Lords in 2009, the Director of Public Prosecutions clarified the law on assisted suicide, introducing a Full Code Test which includes the consideration of "public interest factors". Although the new guidelines are not a direct threat to the 50-year-old Suicide Act 1961 (UK), it is clearly an historic development: the latest in a series of high-profile cases and debates which have taken place over the last decade. It is suggested that English law on assisted dying continues to rely on a range of inappropriate concepts, taboos and superstitions, and it is from this perspective that the implications for future legislative reform are addressed.