Social Security and Taxation: A Note on Some Intellectual Foundations of Social Security and Taxation

This note offers a short summary of intellectual roots of social security and taxation as institutions. The emphasis is on very basic ideas, spanning a bridge from the German historical school to recent French thought. The purpose is, of course, to show the breadth of intellectual options.     

清末修订《刑事民事诉讼法》论考——兼论法典编纂的时机、策略和技术

《刑事民事诉讼法》的修订,本是为了回应守旧大臣的批评,适应当时改革的即时之需。为此,它被定位为一部暂行章程,这导致了它简单、务实的立法风格。不过,与这种风格不协调的是,立法者又显然试图将一些时人并不熟悉的制度引入中国。《刑事民事诉讼裁判等项法律》的发现,为我们进一步了解《刑事民事诉讼法》的起草过程提供了线索。根据现有史料,不足以断定伍廷芳就是《刑事民事诉讼法》的起草人;督抚对该草案的批评,也不能简单归结为“礼教派攻击法理派”。这次立法最终以一种“不了了之”的方式终止,但是,作为法典编纂的一个失败案例,它却给后人以长久的启示。     

Can an employer-based health insurance system be just?

It is America's distinctive practice to tie private health insurance to employment, and recent proposals have tried to retain this link through mandating that all employers provide health insurance to their employees. My primary approach to these issues is neither economic, nor historical, nor political but ethical. After a brief historical overview, I outline a general approach to evaluating the ethical significance of linking the distributions of distinct goods. I examine whether an unjust distribution of jobs spoils justice in the distribution of health insurance, taking as a central example gender inequities in employment and exploring their impact on job-based health insurance. Second, I explore the possibility that justly awarding jobs guarantees justice in employment-sponsored insurance. However, linking the distributions of different goods remains problematic, because such links inevitably undermine equality by enabling the same individuals to enjoy advantages in many different distributive areas. Finally, I examine recent proposals to reform America's health care system by requiring all employers to provide health insurance to their employees. I argue that such proposals lend themselves to the same ethical problems that the current system does and urge greater attention to alternative reform options.     

晚清社会转型中的教育改革立法刍议

20纪初 ,清政府在实行“新政”的过程中 ,制定并颁行了关于学校教育、留学教育以及教育行政管理等制度在内的一系列教育法规 ,标志着中国近代教育法律体系的初步创建。本文通过考察清末教育立法产生的社会历史动因及教育立法的内容特点 ,研究了清末教育立法的历史影响及历史局限     

学校场域：一个关注弱势群体的新视角

学校场域为弱势群体的生存关注及人关怀提供了一个独特的研究视角。学校场域所呈现的关系网络、意义空间、中介形塑以及资本的争夺、惯习的潜沉等诸多特征,将更淋漓尽致地呈现“此时此地”处境不利的弱势群体被遗忘、被贬损、被误读和被过度解释的经过与历程,并可能发对教育实践的更多反思。     

South Africa's unintended experiment in school choice: how the National Education Policy Act,the South Africa Schools Act and the Employment of Educators Act create the enabling conditions for quasi-markets in schools

School choice is often identified with right-leaning, voucher-happy, market-oriented public school systems like those found in the United States. Thus, the proposition that a social democratic state such as South Africa will offer many primary and secondary school learners far greater choice strikes many as counter-intuitive and implausible. The authors demonstrate that the three major pieces of education framework legislation—National Education Policy Act (NEPA), South Africa Schools Act (SASA) and Employment of Educators Act (EEA)—conspire with recent historical events and deep political and constitutional commitments to create South Africa's unintended experiment in school choice.

The authors emphasize that the legal framework created by legislation and regulation are necessary but not sufficient conditions—they prefer to call them enabling conditions—for the creation of quasi-markets in schools. The generation of quasi-markets in schools depends on several other factors required for all markets. The absence of many of these features in much of South Africa explains why the majority of South African learners do not have access to quasi-markets in schools. The absence of such features is largely a function of apartheid's legacy of deeply entrenched patterns of inequality in primary and secondary schooling.

Having demonstrated that historical, political, legal and economic conditions had the unintended consequence of producing school choice—and that school choice was not the result of the state's adoption of a conscious and deliberate policy—the authors examine the state's response to this de facto policy. The authors remain agnostic as to the desirability of the de facto policy and conclude with an exploration of some of the primary critiques of choice in South Africa. While they dismiss the ‘political’ critiques as largely facile, the available empirical evidence suggests the limited systemic benefits and the potentially deleterious consequences for the poorest of the poor who reside in areas where quasi-markets exist. The state's current ‘conscious’ attempts to re-engineer a modest mixed model, that emphasizes access to existing quasi-markets—and thus exploits superior existing school stock for the benefit of learners from historically disadvantaged communities—and that shifts public resources to those schools in the greatest need, accords with what little we know about the advantages and disadvantages of choice.     

伯克—萨维尼意义上的“历史主义”法学思想

伯克—萨维尼强调社会生活有机结构的重要性及它们部分的是＂非意图形成＂,特别是关于法起源于民族＂共同意识＂的理论,对德国和欧美的法学界影响深远。辨识伯克—萨维尼＂有机体＂说以及＂历史主义＂研究法学的思路和方法,讨论历史法学与古典自然法学的尖锐对立,有助于理解历史法学派的思想内核——大量社会现象有机地、非意图形成的理论,对立法活动的可能影响。即使利弊共存,与那些关注如何抵制经济领域创新狂热的经济学家一样,法学家尤其应当关注如何抵制立法领域的创新狂热。     

Examining the Interplay of Justice Perceptions,Motivation, and School Achievement among Secondary School Students

There is a paucity of empirical research on the social psychology of justice in educational settings. A few previous studies have predominantly focused on distributive and procedural justice concerns, and knowledge about the role of what have been called informational and interpersonal justice for school outcomes is very scarce. In the present study, data from 227 eighth- and ninth-grade students who participated in a survey study were analyzed to examine the interplay between relational justice concerns (decomposed into procedural, interpersonal, and informational justice), motivation to study, and school achievement. A comprehensive theoretically grounded multi-item measure of informational justice was developed and validated. The results showed that informational justice significantly predicts school grades, and that motivation to study fully mediates this effect. Neither procedural nor interpersonal justice was associated with school grades. The implications of these results for research and practice are discussed in detail.     

Positive,Normative and Functional Schools in Law and Economics

During its relatively short history, the law and economics movement has developed three distinct schools of thought. The first two schools of thought, often referred to as the Chicago or positive school and the Yale or normative school, developed almost concurrently. The functional school of law and economics, which developed subsequently, draws from public choice theory and the constitutional perspective of the Virginia school of economics to offer a third perspective which is neither fully positive nor fully normative. Various important methodological questions have accompanied the debate between these schools concerning the appropriate role of economic analysis in the institutional design of lawmaking and the limits of methods of evaluation of social preferences and aggregate welfare in policy analysis. These debates have contributed to the growing intellectual interest in the economic analysis of law.JEL Classification: K00, B0, B5, B25, B41     

合同概念的历史变迁及其解释

对合同的概念,在不同的历史阶段和法律文化背景下,存在着各殊的构想模式。古典罗马法以形式主义和类型法定为契约概念的特质,构建了债一契约的制度模式;中世纪注释法学家遵循这一模式,以原因理论重构了合同的概念,这一传统为法国法系继受,使原因理论成为破译其合同概念及相关制度设计的密码;在德国,自然法理论、理性法学和历史法学结亲,以法律行为理论重组合同的要素,使其含义在历史上再一次发生根本性断裂;20世纪以后,制度的变迁又催生了新的合同说明模式。     

Criminal justice history as a field of research: A review of the literature, 1960–1975

A review of recent criminal justice textbooks and standard reference sources indicated a lack of historical studies. Scholars in the United States have not investigated the historical roots of criminal justice and as a result the literature and curricula of criminal justice educational programs portray a narrow contemporary perspective. The author critically analyzes selected historical publications of the past decade and provides suggestions for further research.     

从追求宏大理论到走进学校日常生活——对教育学科学化进程的一种系谱学描述

福柯的系谱学对权力／知识的分析对人-社会科学的研究范式与书写方式产生了深刻影响。教育学实践领域也受其冲击而发生了话语的转换。如果我们从系谱学的角度来反思教育学寻求学科化的历史进程，就会扩大对学科这一概念的理解：作为权力／知识实践方式的学科制度不仅是科学化的标志，也是控制现代生活的策略与技术。因此，对作为一门学科形式存在的教育学知识的寻求未必是适当的或必要的。目前，我们似乎更应该走进学校日常生活，由此迈向具体的教育实践。这或许是教育学走出迷茫之路的一条可能的途径。     

Post‐Secularism and the European Court of Human Rights: Or How God Never Really Went Away

This article analyses the critical yet elusive notions of state neutrality, secularism and religious coercion under the European Convention in light of the European Court of Human Rights recent decision in Lautsi v Italy. We contend that the real concern in the Italian crucifix case was not the infringement of the school pupils’ religious freedom nor the proselytising or coercive effect of the ‘passive’ religious symbols. Rather, opponents of the longstanding symbols were animated by desire for strict religious equality, a notion that is, correctly in our view, not guaranteed under the Convention. Lautsi has significantly cleared the conceptual undergrowth surrounding state neutrality and the varieties of secularism, reined in the elastic notion of religious coercion and eschewed attempts to squeeze the constitutional diversity of European religion‐state frameworks into a strict American‐style separationist mould. The Convention jurisprudence on freedom of religion has finally come of age.     

高校行使学生身份处分权的行政法治问题——由当前高校集体退学事件引出的思考

近年来,高校连续发生的集体退学事件引起了社会的广泛关注。人们对高校身份处分权的认识不足和高校管理中行政法治的缺失是造成这一现象的主要原因。为了既尊重高校的办学自主权,又切实维护学生的受教育权,理论上应当将高校处分权区分为身份处分权和非身份处分权。实施身份处分权应当遵循行政法治原则。     

Victimization, survival and the impunity of forced exile: A case study from the Rwandan genocide

A case study of a Rwandan genocide survivor and a review of the cultural and historical contexts of that crime are presented. The case study examines not only the events that occurred during the genocide, but also the post-victimization reflections of the respondent. It is argued that neither survival nor victimization in genocide are bounded events, but a set of processes. Survival during genocide is accomplished only by navigating through a series of lethal threats. Victimization is perceived to continue after the genocide through the impunity granted to perpetrators.     

Effectiveness of school-based programs to reduce bullying: a commentary

Objectives

Recent decades have seen a focus on intervention programs to reduce school bullying, in light of the severe negative consequences of such behavior. A recent meta-analysis by Ttofi and Farrington (Journal of Experimental Criminology 7: 27?C56, 2011) provided encouraging findings in terms of some significant reductions in bullying and victimization achieved by many programs. They also report analyses of effect sizes associated with specific program elements and design features of the interventions. While this is an important step forward, we critique some of the strong policy implications which they draw from these latter analyses.

Methods

We discuss four important areas to substantiate this critique: analytical procedure, definitional issues, historical issues, and recent empirical data. As context, we use two particular program elements described by Ttofi and Farrington, namely use of disciplinary measures and work with peers, and one design feature, namely age of pupils.

Results

The findings for the program elements and design feature examined are complex and do not justify strong policy implications at this stage.

Conclusions

We conclude with suggestions for future research directions.     

学校文化建设的第三种途径:主动创生

学校文化建设有三种途径:理性思辨、历史叙事、主动创生。相比之下,第三种途径值得开拓,进而成为学校文化建设的根本途径。学校文化与学校现实生活的隔阂见证着主动创生学校文化的必要性,文化本身就具有的主体性昭示着主动创生学校文化的可能性,学校教育活动的人为性彰显出第三种途径的可行性,即通过创造性地改进日常教育活动而主动创生学校文化。     

论民办高校的法人性质

我国现行法律既未明确概括民办高校的公法地位,对其私法地位的界定也与学说和制度不洽,致使民办高校的法人性质不明,对民办高校的发展多有不利。本法理论,民办高校应当既是一种民事法律主体,享有法人的经营权;同时也行使一定的教育行政管理职权,具有公法地位。倘若将民办高校的公法地位概括为依法律授权实施教学行政管理的教育机构,将其私法地位界定为社团法人、准公益法人,并特别地将其界定为民办学校法人,则上述问题将能得到相应的解决。     

Rite of passage: The impact of teaching methods on first year law students

Abstract

SEVERAL RECENT articles suggest that the undergraduate law program harms students in many ways. What we do not know, however, is the cause of these harms. More specifically, we do not know the way in which law students are impacted by current teaching and methods. This is the first empirical research that looks at this specific question.

In 2005 I conducted doctoral research on recent law graduates about both their understanding of undergraduate law school teaching practices and more importantly, the impact of these practices on them personally. The result of the research confirms recent literature and provides new and important information about the extent to which teaching methods harm students.

Specifically, the research suggests that the two main teaching methods used in first year law school, the case method and the lecture method, are not entirely effective or efficient for student learning; the law school curriculum is based on an epistemology of objectivism that makes learning law difficult and the first year law school examinations impact students in several negative ways. This research suggests that the combination of first year teaching practices causes many students to feel isolated, disoriented, disengaged, and ultimately resigned to having no control. This article is a summary of my doctoral research.     

关于中国法律史研究的几点省思

近些年来 ,尽管学界对中国法律史研究有了长足的进步 ,但是 ,对于中国法律史研究的方法问题 ,依然缺乏必要的、自觉的省思。据此 ,本文从中国法律史研究的现状出发 ,对于中国法律史研究的方法问题进行一番检讨。文章共分四个部分 :首先 ,谈论方法的一个前提 ;其次 ,所谓历史的本来面目 ;再次 ,考证与解释 ;最后 ,史料与理论。