Principle,Proceduralism, and Precaution in a Community of Rights

Abstract. This paper presents a sketch of the way in which an ideal‐typical community of rights, Gewirthia, responds to the so‐called “internal problem of authority.” Notwithstanding the deep moral consensus in Gewirthia, where citizens are fully committed to the Principle of Generic Consistency (requiring that agents respect one another’s freedom and basic well‐being), Gewirthians make no claim to “know all the answers.” In consequence, public governance in Gewirthia needs a strategy for dealing with the many kinds of disputes—disputes that relate to matters of both principle and practice—that require authoritative settlement. In this context, having outlined the nature of (and justification for) the procedural strategy that Gewirthia adopts in order to resolve such disputes, we discuss the range of regulatory questions that are potentially moot in Gewirthia, and focus on three hard cases in which the State might argue for a precautionary licence—namely, where there is a dispute about indirect and speculative harm to rights‐holders, about harm to arguable rights‐holders, and about the possible corrosion of the conditions that are essential for the sustainability of a moral community.     

Taking Abortion Rights Seriously: Whole Woman's Health v Hellerstedt

In Whole Woman's Health v Hellerstedt the Supreme Court of the United States passed down its most important decision on abortion for just under a decade. By a majority of 5‐3, the Court ruled that two provisions in a Texas law regulating abortion on grounds of women's health were constitutionally invalid, placing a ‘substantial obstacle’ in the way of women seeking to exercise their right to abortion. This comment delineates the key ways in which the Court's application of the standard of constitutional review under Planned Parenthood v Casey (1992) to the Texas provisions marks a landmark development for the protection of the constitutional right to abortion established in Roe v Wade, not the least by making clear that state abortion regulations which cite ‘women's health’ justifications should not pass constitutional review where those justifications lack a credible factual basis.     

Culture, Autonomy and Djulibinyamurr: Individual and Community in the Construction of Rights to Traditional Designs

The remoteness enquiry in negligence, which serves to exclude the liability of defendants for harmful consequences that their careless conduct caused, but for which it seems unfair to penalise them, has long been beset by uncertainty. Indeed, a common view is that this area of the law can be explained only by reference to diffuse considerations of 'legal policy'. This paper, however, argues that the remoteness enquiry represents a principled response to a problem that can arise, at a deep level, in ascribing a harmful outcome to the negligent exercise of individual agency. The relevant problem concerns the possible mismatch between the hypothetical 'risk-claim' in virtue of which conduct was faulty and the causal set that subsequently materialised for harm. The 'revised risk theory' that emerges from this analysis accounts for the majority of remoteness determinations. However, a few exceptions are also considered where 'policy', in a restricted sense, operates to extend or curtail a negligent agent's legal responsibility.     

Protecting Childhood: Rights,Social Goals and the First Amendment in the Context of the Child Online Protection Act

In Dun & Bradstreet v. Greenmoss Builders, the Supreme Court of the United States reintroduced a subject matter test into libel law, holding that private figures defamed in the discussion of matters of private concern did not need to prove actual malice to collect punitive or presumed damages. The sweeping language of some of opinions, coupled with the Supreme Court's references to subject matter in subsequent cases, led to confusion over whether and how constitutional protections apply in private plaintiff-private issue cases. This article explores how lower federal and state appellate courts have interpreted Dun & Bradstreet and offers three alternate solutions to appropriately balance the First Amendment rights of defendants with the reputational interests of private plaintiffs in cases arising from the discussion of matters of private concern.     

Implanting Community Policing in South Africa: A Failure of History,of Context,and of Theory

The globalisation of policing is not anew phenomenon. The British colonial police are a much older example of that process. But in recent years, policing has come to be `sold' to `transitional' and to `failed' state in a cumulative fashion. The most obvious export by the West in the present day is that of Community-Oriented Policing. However, much of that export drive has been accompanied by a failure of the salespeople to recognize that community policing only works in societies with particular histories and in particular social context. The paper examined the implantation of community policing in South Africa and its failure to take root. An appropriate lesson is drawn. This revised version was published online in August 2006 with corrections to the Cover Date.     

性的差别与平等:女性主义语境下的妇女权利发展模式

对男权社会的基础进行颠覆从而实现两性之间的平等是妇女权利保障的前提性条件,同时这也是女性主义运动的总体目标。纵观当今世界的女性主义运动和理论,主要有五种女性主义理论对妇女权利的发展起到了至关重要的作用。在不同的理论下,妇女权利也呈现出不同的样态,这些理论与实践对当下中国的女权主义理论和实践具有重要的借鉴意义。     

Lawyers and Localities: The Interaction of Community Context and Professionalism

Most studies of the legal profession, done in metropolitan settings, have indicated that the profession is characterized by deep divisions associated with varying practice patterns, professional status, and orientation. But the sources of division within the bar include more than the specialization and stratification that are typical of the bar in metropolitan settings. Community context also appears to be a source of division. It determines not only the character of a lawyer's cases and clients but also the manner in which practice is conducted. This comparison of practice patterns in Missouri of rural lawyers with those in a middle-sized city (Springfield) revealed that while the small town context protects the bar from the centrifugal forces of stratification found in larger settings, it also has elements that challenge the professional independence of the practitioner. The small town or rural practitioner is very much a part of the local life, and thus local opinion and values have a salience for practice patterns not typical of larger settings. In addition, these rural lawyers are less likely to be engaged exclusively in law practice.
Overall, the data suggest that the legal profession is divided not only by specialization and its attendant internal stratification but also by the size and character of the local context. In contrast to the view that the profession is a homogeneous professional subculture, we found that the bar may better be thought of as a rather loose-knit group with tenuous collegial ties whose professionalism is under constant challenge from the community in which law practice occurs.     

Juvenile Court Context and Detention Decisions: Reconsidering the Role of Race,Ethnicity, and Community Characteristics in Juvenile Court Processes

The relationship between race/ethnicity, community dynamics, and juvenile court processes has long been established. Prior research has relied on city‐ or county‐level measures of community characteristics (e.g., racial composition, poverty) to examine how racial groups are processed within juvenile courts. To date, no study has utilized finer scale measures of geographic areas to examine how characteristics of juveniles’ communities impact court decisions. By utilizing official juvenile court data from a city in the southwest, this study draws upon attribution theory to examine how economic and crime community‐level measures directly and indirectly influence detention outcomes. Findings reveal that the effect of race and ethnicity in detention outcomes varies across communities, and the effect of ethnicity in detention decisions is mediated by economic community‐level measures. The theoretical and policy implications of the study findings are discussed.     

Community Context,Weapon Use,and Victim Injury: A Multi-Level Study of Offense Severity in the Sexual Victimization of Women

American Journal of Criminal Justice - Prior studies of the sexual assault of women suggest the importance of weapon use, victim/offender familiarity, and offender intoxication as factors that...     

论社区矫正工作过程中对相关权益的保护

社区矫正是相对于传统的监禁刑而言的一种新兴的罪犯处遇方式,代表着世界范围内行刑发展的潮流与趋势。社区矫正是在行刑过程中注重社会因素的作用,使罪犯能重新复归社会,修复其缺失的人格,塑造其符合社会正常生活的信念。在我国全面试行社区矫正过程中,除了如何保护社区矫正对象的合法权利外,还必须加强对社会其他相关主体的合法权益的保护,这样才能调动社会资源来推动社区矫正工作朝着规范化、正规化和专业化的方向发展。     

当代社会化语境下矿业权法律属性考辨

矿业权是现代国家基于矿产资源国家所有而通过行政许可方式设立的经济权利,自其产生以来便蕴含着公权力因素。因此也导致学界对矿业权的法律属性争论不已。这种情形不利于矿业权市场的规范和引导,进而引发矿业纠纷,也致使国家对矿产资源保护不力。本文通过评介矿业权性质争议,明确矿业权为经济社会化条件下从事勘探、开采、销售矿产品的经济权利,在此基础上厘清矿业权与矿产资源所有权的关系,以利于建立矿业权市场秩序,保障矿业产业政策实施。     

Appointing and Censuring the European Commission: The Adaptation of Parliamentary Institutions to the Community Context

The parliamentary model at the heart of European civic cultures has deeply influenced ‘Constitutional reforms’ in the European Community. But the EC is not a Parliamentary state and the transplant of national institutions in its own political context gives rise to hybrid practices. This paper examines this process of hybridation, and shows that new practices of appointment and censure are emerging in the Community, mixing classic parliamentary institutions with the crucial features of the EC itself. Focusing on recent tensions between the Council, the Commission, and the European Parliament, it shows that they are governed by national divisions, technocratic and legal reasoning rather than by classic majoritarian attitudes. It concludes that, while this new model of accountability might prove efficient in terms of inter‐institutional controls, it remains symbolically inefficient, because it does not help citizens understand and accept the Community institutional model.     

"人权"背景下对民诉法修改的几点思考

2004年3月14日,第十届全国人民代表大会第二次会议通过第四次宪法修正案,首次将"人权"概念引入宪法规范,在<中华人民共和国宪法>第二章第三十三条增加一款规定:国家尊重和保护人权.以"人权"人宪作为标志,中国已经在把"人权"从政治概念转化为法律概念的道路上迈出了第一步.