宽容与平衡:中国刑法现代化的伦理思考

作为自然属性与社会属性的统一,人性不仅是人类道德的基础,也是刑法现代化所必须具备的伦理精神。以宽容的眼光看待人性,不仅要尊重人性中利他的欲望,而且要容忍人性中利己的要求,这是人类道德的基础,也是刑法现代化所必须具备的伦理精神。而正是中国刑法人性基础的薄弱乃至于人性宽容精神的缺位,引发了中国刑法的道德化危机,并导致了中国刑法在立法制度安排、司法实务适用和刑法理论研究中的一系列误区,因而需要以利益平衡为原则,培育中国刑法的现代伦理品格。     

法定权利的伦理学分析

权利的正当性首先和主要是一种合乎道德的正当性 ,能够从伦理上加以分析。在现代社会中 ,法定权利是主要的权利存在形式 ,通过对法定权利存在的原因、法定权利的内容、法定权利的作用等进行一种伦理分析 ,可以发现法定权利 ,进而可以说权利存在道德价值和伦理基础并且可以从伦理学的角度加以论证。     

Double Nationality in the EU: An Argument for Tolerance

Currently the Member States' nationalities, short of being abolished in the legal sense, mostly serve as access points to the status of EU citizenship. Besides, they provide their owners with a limited number of specific rights in deviation from the general principle of non‐discrimination on the basis of nationality, and—what is probably more important for the majority of their owners—trigger legalised discrimination in the wholly internal situations. Viewed in this light, the requirement to have only one Member State's nationality enforced in national law by 10 Member States seems totally outdated and misplaced. This paper focuses on the legal analysis of this controversial requirement.     

Law Enforcement Officers in Schools: An Analysis of Ethical Issues

The use of law enforcement officers in American schools has rapidly expanded since its inception in the 1950s. This growth can in part be attributed to the Safe Schools Act of 1994, the establishment of the Community Oriented Policing Services (COPS) Office, and tragic events that have occurred in our nation's schools. Law enforcement officers in the school environment traditionally have primary roles of protection and enforcement, although many have ancillary roles of educating and mentoring students. However, the use of police in schools has also been associated with the formalization of student discipline and the criminalization of minor misconduct. Specifically, an increase in the number of officers in schools has mirrored an increase in the number of arrests and citations for relatively minor offenses. We argue that officers' socialization and training create role conflict in that the duty to enforce the law competes with other duties to mentor and nurture students. We present several hypothetical dilemmas and then illustrate how the “right thing to do” is determined by the perceived duties of the school safety officer. We conclude by presenting some modest suggestions on how to address the potential role conflict experienced by law enforcement officers working in schools.     

健康权:法伦理视野的解读

对于健康权的解读,大多是从法律学的视角进行的。把法伦理作为健康权研究的视角,是由健康权的价值决定的。健康权的法伦理图像为我们提供了研究健康权的形而上基础,健康权的意义世界为我们提供了研究健康权的伦理精神,健康权"何以可能"为我们提供了研究健康权的逻辑法则,健康权的法伦理基石为我们提供了研究健康权的合理性建构。     

The Ethical Health Lawyer: An Empirical Assessment of Moral Decision Making

Writing in 1999, legal ethics scholar Brad Wendel noted that "[v]ery little empirical work has been done on the moral decision making of lawyers." Indeed, since the mid-1990s, few empirical studies have attempted to explore how attorneys deliberate about ethical dilemmas they encounter in their practice. Moreover, while past research has explored some of the ethical issues confronting lawyers practicing in certain specific areas of practice, no published data exists probing the moral mind of health care lawyers. As signaled by the creation of a regular column "devoted to ethical issues arising in the practice of health law" in the Journal of Law, Medicine & Ethics , the time to address the empirical gap in the professional ethics literature is now. Accordingly, this article presents data collected from 120 health care lawyers. Presenting this population with a number of hypothetical scenarios relating to how they would respond when confronting an ethical dilemma without an obvious solution or when facing a situation in which their personal values were in tension with their professional obligations, this article represents a first step toward better understanding how lawyers who practice in health care settings understand and resolve the moral discomfort they encounter in their professional lives.     

选举的正反功能分析

选举的功能是指选举所产生的各种客观的、可能的影响。选举的正反功能相伴而生,但正功能永远是主要的。对选举正反功能的分析应从对公民和对国家两个角度来进行,其中,对公民的功能处于核心的位置,对国家的功能是为对公民的功能服务的,最终是为了维护并实现公民的各种利益。我们应该从完善选举技术和为选举营造和谐的社会环境两个方面来努力,以期更好地彰显选举的正功能、削减选举的反功能。     

Plurality of the Good? The Problem of Affirmative Tolerance in a Multicultural Society from an Ethical Point of View

Starting from the problem of tolerance in a multicultural society, the author undermines the limits of a classical-liberal foundation (negative tolerance) and suggests the need for a new meaning: a positive concern of tolerance implying appreciation of a variety of social cultures and value traditions. On an ethical level, positive tolerance can be grounded in the Discourse Theory, developing the classical Kantian deontological ethics in a transcendental-pragmatic and in a transcendental-hermeneutic sense. In this way, discourse ethics can answer two questions posed by tolerance in a multicultural society: the duty to support all in the pursuit of their ideals and realize positive tolerance as well as its restrictions.     

法社会学实证研究之初步反思——以学术规范化与本土化为背景

法社会学研究产生于学术规范化和本土化的讨论背景之中,过于强烈的规范化与本土化诉求导致法社会学研究承担了过重的学术外目标,而法社会学研究的学科积累和方法训练又无法回应这种理论需求,由此产生了表达与实践的二重背反。法社会学研究应摆脱规范化与本土化逻辑的负面影响,遵循学术的内在逻辑。     

SECOND OPINIONS An Ethical and Professional Process for Reviewing Child Custody Evaluations

When a parent is dissatisfied with the outcome of a child custody evaluation, he or she is tempted to discredit the evaluation. This article addresses many issues associated with the review of child custody evaluations, in particular, the professional and ethical obligations of the reviewer to maintain a neutral, objective position throughout the review process.