In the light of equity and science: scientific expertise and climate justice after Paris

The Paris Agreement is built on a tension between the common goal of limiting warming to 1.5 °C and the differentiation that follows from the principle of equity. Scientific expertise is commonly seen as providing important means to overcome this tension, for example in the Agreement’s “global stocktake”, which is said to be undertaken “in the light of equity and the best available science”. This raises the question of how scholarly communities best can contribute to deliberations on equitable differentiation in the effort required to meet common temperature goals. To discuss this question, the paper looks to the literature within Science and Technology Studies on the role of science in policymaking, where disagreement exists over the merits of “heating up” controversies through politicization, versus “cooling down” issues by seeking consensus. It assesses two cases in which scientific expertise has engaged with questions of equitable effort-sharing in international climate politics: The “Bali Box” of the IPCC’s Fourth Assessment Report, and the “Civil Society Equity Review” undertaken prior to COP21 in Paris. Based on a comparison of the two cases, it is argued that scientific contributions should not shy away from highlighting conflicts in values and interests, and that “heating up” discussions about climate justice may be a valuable contribution to overcoming the tensions of the Paris Agreement.     

Messages from a middle power: participation by the Republic of Korea in regional environmental cooperation on transboundary air pollution issues

This paper addresses the question whether or not regional middle power states are capable of making a significant contribution to enhancing regional cooperation via regime creation processes. A combination of “nonregime” and the middle power analysis is applied to produce hypotheses about less-developed cases of regime creation in Northeast Asia. Among the attractions of such an approach are that (1) cases of failure to create international regimes as well as cases of success are important to understand the emergence of global governance institutions, and (2) the different roles of various state actors should be understood beyond hegemonic power. The explanatory power of this approach is illustrated by transboundary air pollution issues in Northeast Asia, chosen because the international relations literature has emphasized the development of European regional environmental cooperation and global environmental issues. The paper examines participation by the Republic of Korea (ROK) in both comprehensive and issue-specific environmental cooperative mechanisms to tackle transboundary air pollution. It concludes that the ROK as a middle power has played a promising role to initiate and lead some positive competition between member countries, but at the same time, it highlights challenges that need to be met for creating solid regional environmental cooperation.     

Exploring the Sources of Authority Over the Word Meaning in Transgender Jurisprudence

This paper looks at transgender identities and the law in the context of marriage in common law jurisdictions. It particularly focuses on the nature and sources of authority over word meaning as well as the role of language and definition in classifying transgender individuals into a legal category. When it comes to the legal question of who may marry whom, and what the terms “man” and “woman” actually refer to, there is no statutory definition of the terms “man”, “woman”, “male” and “female”. This has put the onus on judges, especially those who needed to decide whether a transgender person can marry in his/her affirmed sex, to interpret these terms. Two lines of cases in transgender jurisprudence are examined so as to have a close study of how the courts construed these terms and classified transgender people into a category. The first concerns United Kingdom cases, namely Corbett v Corbett (1971), Bellinger v Bellinger (2003) and the Hong Kong case W v Registrar of Marriages (2010), (2011) & (2013). The second consists of Australian cases such as Secretary, Department of Social Security v State Rail Authority (1993) and Re Kevin (2002). This paper discusses these issues by analyzing and comparing different cases in transgender jurisprudence as well as examining how these issues play out in contemporary Hong Kong.     

司法决策中的“父爱主义”管制逻辑

在包括赵春华案在内的诸多引发舆论关注的争议案件中,法官或许并非不是不懂得如何利用社科法学的判断能力与法教义学的裁判技术去弥合司法标准与公众认知之间的巨大断裂,而更可能是基于其“父爱”式的社会“管制”取向而对司法后果的实质合理性问题做出了“爱之深,责之切”的价值决断。在中国特色社会主义法律体系已经形成的历史背景下,为了保证良法的颁行能够导向预期的善治,法律必须以其作为“社会交往机制”的系统潜力而彰显其公理性与司法的合理性。只有首先确立基于交往原则和承认社会自主性的权力逻辑与法律决策结构,那种体现“人性化”“人文化”和“人权化”的方法论逻辑才有可能在法律的运作中获得国家体制官僚无法武断拒斥的实效。     

Radiological Smuggling and Uncontrolled Territories: The Case Of Georgia

The article focuses on radiological smuggling and its connection with uncontrolled territories, the “grey zones” that have emerged as important conduits for illicit contraband, including the trafficking of radioactive materials. The presence of “grey zones,” together with poor border security, weak law enforcement and corruption in government structures, are the most important regional factors that facilitate radiological smuggling. The paper documents the collaboration between criminals, politicians, military and security officers and entrepreneurs in this kind of illicit activity and argues that the fight against radiological smuggling has to shift its focus from technical issues to intelligence gathering and analysis.     

Agency,Authority, and the Logic of Mutual Recognition

The “Cartesian” model of the rational subject is central to the political philosophy of Hobbes and Locke and is “transcendentally” affirmed in Kant's account of ethics and legality. An influential body of Hegelian inspired critique has suggested, however, that the dialectical deficiencies of the dominant models of Liberalism in late modernity inhere in this “atomistic” or “self‐supporting” characterisation of the individual. The “atomistic” perspective appears as an obstacle not only to the coherent articulation of the compatibility of liberty and equality, but also to the attempt to express the mutuality of recognition between agents that might offer a genuinely communal conception of constitution and subject. Employing as a frame of reference Alan Brudner's analysis of these issues in his comprehensive Constitutional Goods (Brudner 2004) it is argued that legal and political theory might usefully adopt an understanding of Hegel's notion of “recognition” (Anerkennung) in this regard without drastic phenomenological reconstruction of the Cartesian or Kantian subject.     

“规则制华”政策下中国自由贸易协定的功能转向

中国已签订的自由贸易协定在商界利用率不高,经贸规则止步于对世界贸易组织的简单模仿,总体上偏向于扩大市场准入的传统功能且效果有限。当代国际经济法面临体系性重构,由西方主导的“规则制华”政策的影响与日俱增,但该政策背离了全球治理的正确方向。鉴于此,当下中国自由贸易协定应积极转向规则建构功能:一是以自身利益为内在基准进行议题盘点,突出自身的规则诉求;二是以制度扩散为外在目标,追求国内制度外溢与对外制度供给,并以“效率提升型”制度为供给特色,从而将本国自身利益与国际公共利益结合起来。“合理利用区域机制,通过自由贸易协定进行规则再造,对‘一带一路’中小伙伴进行制度供给”的改革思路符合中国的实力现状,这一思路既能促进全球化背景下的经贸合作利益,又能保障新兴大国对内的公共政策自主权与对外的制度话语权。     

The Commission for Environmental Cooperation and North American Migratory Bird Conservation: The Potential of the NAAEC Citizen Submission Procedure

This article examines the citizen submission process laid out in Articles 14--15 of the North American Agreement on Environmental Cooperation (NAAEC), the 1993 environmental NAFTA “side agreement.” These articles set out a process by which nongovernmental organizations (NGOs) or individuals may file a submission alleging that one of the Parties to the agreement “is failing to effectively enforce its environmental law.” The paper traces developments set in motion by two submissions alleging failure to enforce migratory bird legislation. The first targets the United States, the second, Canada. Developments in these and other Article 14--15 cases have enfeebled an instrument that, from the outset, many regarded as having quite limited potential. These cases indicate, nonetheless, that the procedure still has some limited usefulness as a way of highlighting implementation failures. NGOs that do choose to invest in pursuing a citizen submission process would be advised to combine these efforts with other approaches to mobilizing public pressure.     

Technology Transfer in European Regions: Introduction to the Special Issue

Regions can be considered as “regional innovation systems,” but the question of whether and to what extent technology transfer is taking place at this or other (e.g., national and global) levels remains empirical. The theme issue contains a number of case studies of “regional innovation systems” within the European Union. Other papers elaborate on the pros and cons of the systemic approach to the technology transfer processes involved, or make comparisons across regions. In this introduction, the editors discuss the relations between regional policies, technology and innovation policies, and the integration of these different aspects into (potentially regional) systems of innovation. Under what conditions can “technology transfer” be considered as a mechanism of integration at the regional level?     

Law,the State,and the Dialectics of State Crime

Drawing on material from a study of civil society and state crime in six countries, this article reflects on two themes from Chambliss’s work: the debate between state-centred and more pluralistic views of law, and the “dialectical” approach to the analysis of state crime. It argues for a more pluralistic approach to law than Chambliss and Seidman adopted in Law Order and Power, along with a broader approach to the definition of state crime as a form of deviant behaviour. Case studies from the civil society research illustrate how the strategies adopted by organizations challenging state practices can be understood in terms of an interplay between different forms of law. With some qualifications, we support Chambliss’s dialectical approach, and attempt to clarify just what the term “dialectical” means. Finally we bring together the two strands of the argument to propose an approach to state crime founded on “dialectical legal pluralism”.     

Administrative,legal, and ethical practices in the psychological testing of law enforcement officers

Recently, more law enforcement agencies have chosen to use psychological testing as an important component of their preemployment screening programs. Important legal and ethical issues have been raised by the increased use of psychological testing for this purpose. These issues include the applicant's right to privacy, the validity of the psychological instrument(s) used, the definition of what constitutes an “unsuitable” candidate, and the existence of racial and/or sexual bias. This article presents ten suggestions that address some of these issues and that may aid law enforcement agencies in adopting the spirit of the Uniform Guidelines on Employee Selection Procedures and other psychological-testing standards.     

中间层级何以保障政府运转? ——政府过程中的副职领导研究

【问题】中国副职领导官员通过怎样的机制介入政府过程?作为中间层级的政府群体,他们如何处理政府运行中的组织目标和执行能力的关系?副职领导官员对于理解政府治理有着怎样的理论与实践意义?【方法】论文基于田野调查和访谈,重点关注政府中的互动“事件”,依据“条条—块块”“上层—下层”“重要—日常”维度获得了19个案例,并进行了扎根理论分析。【发现】副职领导官员凭借分管、集体化和复杂性特征成为兼顾组织目标和执行能力的“保障性耦合枢纽”,并表现出三种机制:其一,方案转化机制,即结合价值目标和能力水平议定行动方案;其二,激励统率机制,即在上级授权之下动员、组织和引导下属官员;其三,调适纠偏机制,即对组织运行的潜在问题进行调节。这些机制使政府过程富有层层过渡的弹性,把压力化指标不断转化,并将激励链条贯穿于组织网络之中。【贡献】组织不会一直保持均衡结构,而中国情境中的副职领导官员能够使政府组织实现动态平衡,启示了中间层级研究的价值。论文审视了副职领导官员群体的重要性,揭示了他们在中国科层组织中的独特作用:作为积极的集体性行动者,副职领导官员串联协同各个层级,将政府有效运转起来。     

The mourning process and “living with the dead”: Two case reports and a review of the literature

The discovery of mummified bodies in domestic settings is not unusual in the medico‐legal context. It is often a marker of social isolation, even in our urban modern society, and usually occurs among elderly people living alone or in precarious conditions. However, bereaved subjects can sometimes be found managing their grief by deliberately keeping the corpses of their loved ones at home. Investigation of these atypical cases can be challenging and often requires a multidisciplinary effort by different forensic specialists. We report two cases of people who lived for several months with the mummified remains of a relative. In both cases, the judge ordered a forensic psychiatry assessment of the survivors’ competency and the reasons for this peculiar behavior, which is regarded as abnormal in our society. Case 1 describes a shared psychosis, which developed out of a condition of extreme seclusion of the entire family. Case 2 shows that even a mild personality disorder on which a series of traumatic events operates can trigger psychotic decompensation, causing extreme denial of the reality of death. The analysis of these cases contributes to our knowledge of the scantly studied phenomenon of “Living with the Dead” and raises questions about the psychopathology behind it. It is useful to identify subjects who are more prone to developing this “deviant” behavior, in order to distinguish people with mental illness from those who merely want to profit from the death of a loved one.     

Once a Soldier,Always a Soldier: A Typological Analysis of Military Delinquency Based on the Military-cum-Social Problem of Soldiers/Bandits in China, 1890s to Early 1950s

In traditional or Old China, (especially from the 1890s through 1940s), soldiers seemed to enjoy “unlimited” opportunities to engage in bandit activities (e.g., looting villages, setting civilian houses on fire, extorting landlords, abducting and trafficking children, gang raping women, etc.). One important factor that allowed these armed personnel to commit various criminal acts was that China did not have an integrated military system before the 1950s. Therefore, state managers usually could not supervise (let along regulate) the behavior of soldiers. Given that an institutionalized system that could put soldiers under state control was missing, it was not surprising that when soldiers were sent to a certain battlefield that villages, rural towns, and cities surrounding that combat zone were always raided and looted by soldiers turned bandits. Unlike those “wicked” soldiers who became involved in various social evils related to banditry, hundreds of thousands of “good” bandits in Old China joined regular troops. This “righteous act” basically was connected with the fact that almost all bandits, as desperados, lived in a “Darwinian” world. Since this world is governed entirely by the law of competition (i.e., only the “strongest” and the “smartest” could survive), leaders of bandit gangs usually could not ascertain whether they can continue doing those “businesses” that do require investment in the foreseeable future. As a result of this uncertainty, joining regular armies (if this “application” was officially approved by the authorities) was normally the “best choice” for armed bandits (whether they were core members or followers). In other words, becoming a part of government troops usually allowed chiefs and adherents of bandit gangs to enjoy miscellaneous benefits (such as formal military rank, social position, and state-controlled resources like stipend, ammunition, and weapons). As these benefits include the elements of legitimacy and economic security, “big brothers” of bandit blocs generally wished that their personal troops could be transformed into part of the formal troops in order that the marginalized and illicit status of such private troops be terminated. In this paper, the issue of military delinquency will be explored; by using the interactive relationship between Chinese soldiers and Chinese bandits during the period of late-nineteenth to mid-twentieth centuries as an example, the goal of this article is to examine those socioeconomic contexts that provide military personnel with opportunities to perpetrate antisocial or criminal behaviors. Four “Big Jobs” will be performed in this paper: first, the structural factors which, before the 1950s, gave Chinese soldiers opportunities to commit bandit acts will be addressed; then, the environmental causes that motivated marginalized populations (chiefly males) to join bandit gangs will be listed. After these two issues have been inspected, the connection between soldier-bandits and bandit-soldiers will be analyzed. The implications of this relationship will be summarized in the final section.     

Defeminizing and Dehumanizing Female Murderers

Abstract

Case studies of the 35 women on death row in 1993 suggest that hetero-feminine image is important in engendering chivalry and thus leniency toward female offenders. Lesbians in particular were over-represented in atypical death sentence cases. Featured are media and prosecutorial representations of the cases of five lesbians on death row. These offenders were depicted as manly and man-hating women who occupy additional marginalized statuses, and who vent their rage and irrational desire for revenge through killing. Argued is that this homo-sexualized portrayal of female evil may affect sentencing decisions as an additional “aggravating circumstance” in an already heinous crime.     

Presumptions,Burdens, and Best Interests in Relocation Law

The pure “best interests” approach to relocation law is a failure. It is unpredictable and expensive, increasing conflict and discouraging settlement. The “fundamental questions” proposed by Parkinson and Cashmore in their article will not reform the law. Real reform will require the use of presumptions or burdens to guide best interests. “Presumptions” are not “rules,” but only starting points. No simple presumption “for” or “against” all relocations can be justified, but there are large categories of cases that do warrant presumptions: interim moves, unilateral relocations, shared care, and predominant primary caregivers. The first three involve presumptions against relocation, while the last—the largest category—warrants a presumption that relocation is in the best interests of the child, unless the contrary is proved. There will remain a small minority of in‐between cases where none of these presumptions will operate, recognizing the limits of our general knowledge. It is time to move the relocation reform debate beyond pure “best interests,” to the next stage, to a serious discussion of which cases warrant presumptions, and of what strength.

Key Points for the Family Court Community
• Pure best interests approach to relocation law is a failure
• Presumptions or burdens needed to reform the law, but not just “for” or “against”
• Presumptions are identified for four categories of relocation cases: interim moves, unilateral relocations, shared care, and predominant primary caregivers

     

Positivism,Legal Validity,and the Separation of Law and Morals

The essay discusses the import of the separability thesis both for legal positivism and for contemporary legal practice. First, the place of the separability thesis in legal positivism will be explored, distinguishing between “standard positivism” and “post‐Hartian positivism.” Then I will consider various kinds of relations between law and morality that are worthy of jurisprudential interest, and explore, from a positivist point of view, what kind of relations between law and morality must be rejected, what kind of such relations should be taken into account, and what kind of such relations are indeed of no import at all. The upshot of this analysis consists in highlighting the distinction between two different dimensions of legal validity (formal validity and material validity respectively), and in pointing out that the positivist separability thesis can apply to formal validity only. On the other hand, when the ascertainment of material validity is at stake, some form of moral reasoning may well be involved (here and now, it is necessarily involved). The essay concludes with some brief remarks on the persisting importance of the positivist jurisprudential project.     

Systemic error: measuring gender in criminological research

This study examines how sex and gender are measured and operationalized in studies on criminology and criminal justice (CCJ) through content analysis of peer-reviewed journals. Despite that they are distinct and not always parallel, the terms sex and gender are often used interchangeably in CCJ research. Moreover, despite increasing recognition that gender-responsive practices are important at every stage of the criminal justice process, gender is almost exclusively measured as a male-female binary, miscategorizing and failing to properly account for those who do not fit in one of those gender identities. There are important implications for the safety of such individuals, as both victims and offenders throughout the criminal justice process, therefore it is essential that we more accurately measure gender in this field. Recommendations for improvement are addressed.     

Youth Gangs: A 1990s Perspective

The juvenile gang in the 1990s differs in many significant ways from the gangs described in the “classical” gang studies of the 1950s and 1960s. Juvenile justice professionals should be aware of the changes in the nature, organization, motivation, and activities of gangs and plan intervention strategies accordingly. One important issue in gang research—one which has great implications for public policy—is defining “gang” and “gang-related crime.” The existence of a “gang problem” in a community may be more related to the definition of “gang” and “gang-related” than to the objective issue of whether, or not, a gang problem exists. Further issues relating to the gang of the 1990s involve changing age and sex distribution of gang members, increasing violence by gangs, and deeper involvement with drug distribution. Implications for public policy are discussed.