PERFORMING ARTS MANAGEMENT AND ADMINISTRATION

The aim of this article is to analyze the impact of EU cultural policies on a EUropean (capitalized "EU" meaning only EU member states) cultural identity. Although EUropean integration began as an economic project, the EU has developed more and more statelike features over time and has brought the question of democratization to the fore. Such questions, in turn, led to questions of what constitutes the EUropean demos and how to conceive of its collective identity. The EUropean identity has developed in addition and as a complement to the national identities of the member states. The article argues for EU cultural policies that foster plural, multiple, and dynamic identities instead of a unified EUropean identity. The EUropean cultural policies should not be based on assumed common roots expressed in the cultural heritage of Europe, but rather should focus on contemporary and critical cultural and artistic expressions.     

论现代民法在“从契约到身份”运动中的困境与突破——以民法的终极价值为视角

“从契约到身份”运动的兴起,使现代民法陷入了困境。民法的终极价值是自由,这决定了民法在面对上述运动时,必须放弃社会正义的价值取向,而坚持自由这一终极价值。“从契约到身份”运动只能由以社会本位为本原的经济法加以规范。     

回归生存—论“人之生存”语境下学校教育的价值

“生存”问题是人的根本性问题。人之生存体现为一种主动的生活方式,是人与环境的共同生成,是人的生命表达进一步丰富化的过程,也是一个永无止境的实现历程。教育的根本价值体现在对人之生存的关怀层次和程度的提高上。从“学习”的角度看,人的生存与“学习”、与终身教育具有内在相关性。学校教育的发展,总是与人的生存环境的变迁和人的生存方式的转换密切相关。面对当代学校教育与人之生存间关系的疏离,需要学校教育处理好系统内外的关系和内部各要素的关系,将学校教育的内在生命价值展现出来。     

契约为何必须遵守

在法学和伦理学领域 ,“契约必须遵守”一直被视为是不能继续追问的先验性命题。本文利用博弈论的分析工具 ,为初级形态的社会秩序的生成 (从冲突到和平的过程 )提供一种模型化解释 ,并对侵犯行为的发生以及和平契约的缔结进行了细致的分析 ,进而在逻辑上回答了“契约为何必须遵守”的问题。     

Passions out of place: Law,incommensurability and resistance

Conclusion This has been an account of how an incommensurability between peoples is integral to the creation of identity in modernity and of how law assumes its modern, ambivalent being through embodying and mediating that incommensurability. A concluding point can be made by relating all this to the large and revelatory concern nowadays with the construction of Occidental identity in exclusion. This construction involves that which is acceptable or within the identity being created in its difference to that which is unfit and excluded. Looked at in reverse, if the excluded were to re-enter, as it were, then the identity would disintegrate. All of which, so the story continues, is a somewhat figurative way of discerning processes that remain internal to the identity. There is no without because the supposedly excluded is a fantastic projection of what is within, although it is repressed there. This projection is, however, attached to actuality, as we have seen. In ascribing what is excluded to the colonized, peasants and other incommensurables, not only must their difference to what is within be fabricated and asserted but also their similarity to what is within must be denied. The resistances of the colonized, which have just been described, succeeded because of organizational efficacies and juridical assertions which were the putative preserve of the Occident. Such a sameness of what should be different may locate a remote recess in a globalized Occidental identity, including its law, from which it could be seen as partial and precarious.The most enjoyable part of producing this paper was the discussion of a draft at a seminar organised by the Department of Legal Studies, La Trobe University, in September 1994.     

Murder, Extramarital Affairs, and the Issue of Probative Value

A paper previously published in Law and Human Behavior by D. Davis and W. C. Follette (2002) argued that certain "profiling" characteristics commonly admitted into court have little or no probative value. They argued that this is especially likely to be true when the characteristic used as evidence (e.g., having an extramarital affair) is rather common in the population whereas the act in question (e.g., a man murdering his wife) is rare. Their analysis has prompted a strong response by Friedman and Park and by Kaye and Koehler with a rejoinder by Davis and Follette (all three follow this paper in this issue of Law and Human Behavior). This paper describes some of the nature of this controversy.     

政治问题理论的衰落与重构

政治问题作为可推翻的"自然推定",属于可诉性理论的阻却事由要件。其理论发轫于联邦党人对宪法"特定条款"的阐述。为了应对将政治问题理论区分为经典形式与审慎形式所带来的司法操作性难题,布伦南大法官通过描述政治问题的六个特征,构建了政治问题的确认标准。然而,法院在适用政治问题确认标准的过程中所形成的政治问题理论的循环悖论,以及学界对政治问题理论存在合理性的质疑使得其经典形式出现变异、审慎形式日渐消亡。在激励相容理论基础上重构政治问题理论,可以尝试化解学界对政治问题免于司法审查理论基础的种种非议。     

“以人为本”刍议

人与物的关系问题是价值论的基本问题,根据这个问题的回答,形成人本主义与物本主义。人本主义和物本主义分歧的焦点在于：人的价值是否决定于他所拥有的物的价值?人的命运是否应当由物来控制和决定?人本主义主张以人为本,强调一切为了人,一切依靠人。人类的经济活动是一把双刃剑,它本来是为人的,但它又会导致人性的扭曲。在人本主义经济中,经济活动中的“非人性”因素将受到有效的抑制,经济将进一步人性化。     

Equity,relative deprivation,and the value consensus paradox

This paper addresses the question of why respondents, when asked to specify an income they would be willing to accept as just, settle for an amount that, in most case, does not deviate strongly from what they actually receive. The phenomenon is illustrated by data from West Germany. It is argued that relative deprivation theory must be extended to incorporate processes of social hierarchy perception because inasmuch as this perception is contorted it creates illusory justice evaluations. Empirical evidence of misperceiving social distributions is given by social grading studies based on large German samples. The structural causes of the distributional misperceptions are discussed, one of these causes being the value consensus paradox, i.e., the paradox that, in a stratified society, value consensus will produce different social perceptions.     

代孕背景下亲子关系的确定

人工生殖技术的发展改变了传统的自然生育方式,给法律上亲子关系的认定带来了巨大的冲击。传统"分娩者为母"原则受到了技术上的挑战,无法满足现实需求;根据基因来源确定亲子关系,在某种情况下背离了捐精者或供卵人的意思自治;而以"儿童最大利益原则"为标准使得代孕子女出生前无法形成有效的身份预期。从代孕协议的效力上来看,代孕协议本身并不与强制性法律法规相悖,也不会对公序良俗造成剧烈的冲击,代孕协议的效力不应被轻易否定。因此,代孕背景下亲子关系应当依据代孕协议确定,并以"儿童最大利益原则"作为补充要素。另外,由于代孕协议涉及到伦理色彩浓厚的身份法领域,其不能简单地适用《合同法》的规定,因此,在代孕协议无效的情况下,应当坚持"身份确定原则",严格限定当事人提起无效之诉的时效,并承认事实抚养关系。     

Is victim identity in genocide a question of science or law? The scientific perspective,with special reference to Darfur

In genocide, victims must represent an ethnic, racial, religious or national group. But is victim identity a question of science or law? Must victims be a socially recognized group or can group identity exist solely in the mind of the perpetrator? This question is relevant to the on-going crisis in Darfur. The “Arab-on-African” violence depicted in the media encompasses identities not shared by Darfurians. This study details an evaluation of victim identity in Darfur, based on field research and literature review. Darfurians are defined by subsistence strategy and economic groups are not protected under genocide law. Whether Darfur is genocide depends on whether victims must conform to scientific group classifications or need only be defined by their relationship to the perpetrators.     

Moving Beyond Command-and-Control: Reflexivity in the Regulation of Occupational Safety and Health and the Environment

Direct or "command-and-control" regulation has had limited success in dealing with occupational health and safety and with environmental regulation. This lack of success has led policymakers to experiment with self-regulation as an alternative means of achieving the goals of social regulation. The economic subsystem fails to acknowledge its social identity and, therefore, appears to be blind to its negative performance regarding the environment and the workplace. The authors of this paper argue that moving beyond command-and-control can be feasible and desirable, at least to a certain extent, but that pitfalls are omnipresent. "Regulatory dilemmas" need to be solved, sound empirical studies need to be conducted, and a guiding theory needs to be drafted. To achieve these goals, the authors suggest use of the key concept of "reflexivity," which refers to the economic organization's relationship with itself. The practical usefulness of this theoretical concept is explored against the background of regulatory practice in the areas of occupational safety and health and the environment. It is concluded that a mode of reflexive administrative law requires a "negotiating government," which adopts a mixture of strategies and learns to cope with issues like third-party interests, access to information, and enforcement.     

Inference of identity of source using univariate and bivariate methods

In this study we explore the inference of identity of source using a two-dimensional feature vector. As an example, we study the use of the Bayesian framework for the estimation of the value of evidence of color measurements for identity of source of blue ballpoint pen inks. Univariate as well as bivariate analyses are carried out for color data that was acquired with a flatbed scanner. While this might not be the best method to discriminate inks, we will use it as an example to estimate what the value of the evidence is, however low or high it may be. It is hoped that this exercise is instructional, as a similar approach can readily be applied in other situations.     

论宪法原则

本文从宪法逻辑学的角度出发来研究宪法原则。涉及了宪法原则的三个法理特征,即宪法原则的正当性、确定性和有效性。作者认为,宪法原则是一个典型的价值问题,而非事实问题,因此,解释以价值形态存在的宪法原则首先要回答的问题应当是“宪法原则应该是什么”,而不是“宪法原则是什么”。作者主张,宪法原则应该是“决定‘形式宪法’形式和内容的基本价值准则”,宪法原则的功能在于“反对特权现象”,宪法原则源于立宪主义的实践和对宪法功能与普通法律功能的区分。宪法制度必须以“反对特权”为目的来设计相应的手段性措施。这是宪法制度构造的逻辑起点。由此可以产生“目的性宪法原则”与“手段性宪法原则”两类互为因果的宪法原则体系。     

基于事实契约理论的事实劳动关系重述

由于历史的原因,我国劳动法领域形成的关于"事实劳动关系是欠缺书面形式的劳动关系"之通说给劳动者权益保护带来了普遍和深远的损害,其理论依据被认为是德国学者豪普特教授提出的事实契约理论。实际上,根据事实契约理论,事实劳动关系是指无有效之劳动契约而提供从属劳动所形成的劳动关系。该理论虽遭激烈批评,但在有关身份的领域不可被传统契约理论所替代。在合意因欠缺生效要件而被认定无效之场合,事实契约理论为这类"被否定"的用工行为提供了"被承认"的新的理论框架和立法技术。我国《劳动合同法》对无效劳动合同的劳动者一方以民法式保护为原则,以劳动法式保护为例外,存在保护不足、保护过度及违背传统契约法形式理性等问题,需作进一步的反思与调整。     

Identity-Lineup Location Influences Target Selection: Evidence from Eye Movements

Eyewitnesses often have to recognize the perpetrators of an observed crime from identity lineups. In the construction of these lineups, a decision must be made concerning where a suspect should be placed, but whether location in a lineup affects the identification of a perpetrator has received little attention. This study explored this problem with a face-matching task, in which observers decided if pairs of faces depict the same person or two different people (Experiment 1), and with a lineup task in which the presence of a target had to be detected in an identity parade of five faces (Experiment 2). In addition, this study also explored if high accuracy is related to a perceptual pop-out effect, whereby the target is detected rapidly among the lineup. In both experiments, observers?? eye movements revealed that location determines the order in which people were viewed, whereby faces on the left side were consistently viewed first. This location effect was reflected also in observers?? responses, so that a foil face on the left side of a lineup display was more likely to be misidentified as the target. However, identification accuracy was not related to a pop-out effect. The implications of these findings are discussed.     

隐私的价值独特性:个人信息为何应受保护?

要想准确理解已经开始施行的《个人信息保护法》,就必须恰当回答“个人信息为何值得保护”的问题,而这个问题的答案经常与“隐私”的价值关联在一起。但是,对隐私的理解,主要被一种“隐私并不具备独特价值”的化约论所统治;因此,只有击败化约论,才能最终证明隐私的价值独特性,也才能最终说明隐私为何值得保护。击败隐私化约论最主要的理由是,如果认为隐私不具备价值独特性,那么对任何特定个体而言,就只能提供“我是我”的对待,而这种对待将会带来贬损、甚至否认“我是人”的结果,这将会严重损害人的尊严。     

集体土地所有权的三重功能属性——基于罗马氏族与我国农村集体土地的比较分析

我国的农村集体土地所有权与罗马氏族集体土地制度相似,糅合了公法层面的治理功能、生存保障功能以及私法层面的市场化私权功能,对集体土地上承载的这三重功能进行区分,是解决现今农村土地问题的理论前提。集体土地最初作为国家控制农村社会经济的一种政治性安排的法律治理结构,强化了农民与集体基于土地的身份关系,把保障集体内部成员的生存作为首要价值目标,并强调土地利用的平等性。集体所有模式还导致了"成员权"与"公民权"这双重身份的重叠与抵牾,这实质上反映了集体土地上保障功能与市场机能的冲突。随着农村治理结构的转变,集体土地所有权逐渐转变为具备实体权利义务关系的私权规范,立法上应对集体土地的"初始分配"与"自由流转"两个阶段进行适当区分和切割,而非将两种截然不同的价值理念同时混同在一套农地制度之中。     

More than Ideology: Conservative–Liberal Identity and Receptivity to Political Cues

To many commentators and social scientists, Americans’ stances on political issues are to an important extent driven by an underlying conservative–liberal ideological dimension. Self-identification as conservative vs. liberal is regarded as a marker of this dimension. However, past research has not thoroughly distinguished between ideological identity (a self-categorization) and ideology (an integrated value system). This research evaluates the thesis that conservative–liberal identity functions as a readiness to adopt beliefs and attitudes about newly politicized issues that one is told are consistent with the socially prescribed meaning of conservatism–liberalism. In Study 1, conservative–liberal identity, measured in 2000, had an independent prospective effect on support for invading Iraq in 2002 and support for the Iraq war in 2004, controlling for substantive ideology, party identity, and demographics. In Study 2, conservative- and liberal-identifiers adopted stances on farm subsidy policy based on randomly varied cues indicating which ideological group supports which stance. This cue-based influence was mediated by adoption of attitude-supportive beliefs. Discussion addresses the joint impact of political discourse and identity-based social influence on the organization of political attitudes.     

Queer(ed) risks: life insurance, HIV/AIDS, and the "gay question"

In 2004 the Association of British Insurers (ABI) issued its second Statement of Best Practice on HIV and Insurance. This prohibited use of the "gay question" (employed by some underwriters in application forms for life insurance to identify heightened risk of infection with HIV), in response to growing criticism that the practice was actuarially unreliable, unfair to gay men, and unnecessary, given the availability of alternative "behaviour-based" risk criteria. While the overhaul of this controversial practice is clearly a victory for gay (male) identity politics, this paper argues that the interests of gay men seem to have dominated at the expense of a more far-reaching critique of the industry's evaluation of infection risk. It contends that a more radical (or "queerer") challenge is needed which can better understand and address the injustices created by criteria for appraising risk of infection that still remain in place.