Democracy,Subsidiarity, and Citizenship in the ‘European Commonwealth’

Is there a ‘constitutional moment’in contemporary Europe? What if anything is the constitution of theEuropean Union; what kind of polity is the Union? The suggestionoffered is that there is a legally constituted order, and that asuitable term to apply to it is a‘commonwealth’, comprising a commonwealthof ‘post-sovereign’ states. Is it a democraticcommonwealth, and can it be? Is there sufficiently ademos or ‘people’ for democracy to be possible?If not democratic, what is it? Monarchy, oligarchy, ordemocracy, or a ‘mixed constitution’? Argued: thereis a mixed constitution containing a reasonableelement of democratic rule. The value of democracy isthen explored in terms of individualistic versusholistic evaluation and instrumental versus intrinsicvalue. Subsidiarity can be considered in a similarlight, suggestively in terms of forms of democracyappropriate to different levels of self-government.The conclusion is that there is no absolute democraticdeficit in the European commonwealth.

     

Pathologies of Deliberation in the EU

The article explores the ‘dark side’ of deliberation with regard to the EU. In contrast to the dominant apologetics of deliberation, it argues that even though deliberation might have benevolent effects on decision making in the EU, the convention method cannot be viewed as a democratic alternative to the intergovernmental conferences. This is due to the pathologies of deliberation that can only be corrected by applying additional mechanisms. The article explores the pathologies of deliberation by referring to recent experience with the convention method applied within the Convention on the Charter of Fundamental Rights (1999/2000) and the Convention on the Future of the European Union (2002/2003). It discusses two types of deliberative pathologies including the false will‐formation and the rational hijacking of deliberation which question the validity of democratic claims made by deliberation theory.     

Beyond Consensus: Law, Disagreement and Democracy

Nowadays democratic liberal societies face a rising challenge in terms of fragmentation and erosion of shared values and ethical pluralism. Democracy is not anymore grounded in the possibility of a common understanding and interpretation of the same values. Neverthless, legal and political philosophy continue to focus on how to reach consensus, especially through monist, objectualist, contractualist, discursive and deliberative approaches, rather than openly affording the issue of disagreement. Far from being just a disruptive force, disagreement and conflict are matters of fact that no reflection on democracy can underevaluate. They are the major issues through which to look at the intersection of law, politics and morals. The inclusion of dissent is a powerful tool for moral recognition of different understandings of justice. That is where legal procedures become crucial. Law is a fundamental element in the building of a democracy. But it is also particularly exposed to disagreement. Language indeterminacy, dogmatic concepts and value pluralism constitute the main elements that lead to alternative and conflicting interpretations of law in a democratic framework. Major legal progress in the past has come from different understandings of the same legal materials. In this article I argue that respect for disagreement should be a moral principle in democracy and that the role of legal disagreement is essential to understand the evolution and the future directions of democracy as the government of a political community. To do so, a link between respect for disagreement and legal interpretation and argumentation must be established in order to make room for reason and avoid extreme skepticism on the contribution of law to the enforcement of democracy.     

孙中山民权主义与当代社会主义民主政治

以孙中山民权主义为旗帜,辛亥革命推动中国迈出了从传统权力社会向现代民主社会转型的第一步.今天我们对其予以重新审视,可以看到孙中山民权主义理论与实践对于当今中国政治民主的发展,不仅是重要的思想资源,而且具有强烈的现实启示:在目标上,建设现代政治文明应是一种现实追求,而不是遥远理想;在内容上,应接受国际社会具有普遍性的治理模式,对一向被视为神圣不可动摇的"议行合一制",应予以重新研究;在路径上,推进民主政治,应认同必要的政治妥协,采取和平渐进方式,而摈弃"不断革命"的激进主义.     

论法院之友制度及其在我国的移植障碍

作为现代审判机构民主措施之一的英美法院之友制度,颇为我国诉讼法学界所关注与推崇,有论者甚至建议将之移植到我国以推动审判的民主化进程。然而,尽管该制度的某些观念和因素可用于完善我国现有制度,但从我国的现有国情来看,完整地移植法院之友制度尚无必要。     

Special report on reimbursement. The safe harbor for small investment interests: where do joint ventures go from here?

There is no specific federal self-referral legislation presently proposed or in effect that statutorily prohibits providers from referring Medicare or other patients to entities in which the referrers have an investment interest, except for existing "Stark" legislation, which applies only to clinical laboratory services, effective January 1, 1992. (See Newsletter, Vol. 6, No. 1, January 1991, at 3.) Thus, health care joint ventures are not per se illegal. The publication of the Safe Harbor Regulations does nothing to change this fundamental fact, and it should not cause providers to abandon existing joint ventures, or planned ones, in a "knee-jerk" fashion, without careful analysis. Of course, there is no guarantee that expanded "Stark" legislation, or some other new self-referral legislation, will not be enacted in the future to prohibit providers from referring patients to entities in which they have an investment interest. Because of this uncertainty, all health care joint ventures should contain "unwinding" provisions to govern the rights and obligations of investors in the event that the venture is required to, or the participants voluntarily elect to, dissolve. Any new venture being contemplated should plan for dissolution, and existing ventures should undertake an internal review of their charter documents to assess whether the rights and duties of all participants upon dissolution are properly spelled out. If not, amendments should be made now, while all participants are on good terms. A failure to agree in advance upon such important issues is an invitation to discord, and possibly even litigation.     

THE RULE OF LAW AND EXPERIENCE OF THE KOREAN JUDICIARY

As a social norm, law in a democratic society should be established in the form of positive law by collecting opinions of people. In order for the rule of law to be properly practiced in a democratic country, the doctrine of separation of powers requires that the legislative, executive, and judicial functions should not be consolidated in a single body. However, even within a perfectly established legislative system, the principle of the rule of law may be distorted depending on the role of the judiciary. The experience of the Korean judiciary shows that even though it is designed to be a completely independent organ of the lawmaking National Assembly and the law-enforcing executive branch; it would fail to properly give effect to the country’s governing principle of the rule of law. It may be thought that the fundamental reasons lie in the endemic tendency towards the rule of man in East Asian societies. Nowadays, those who received education in a democratic society without experiencing the authoritarianism have begun to make inroads into the leadership of the judicial branch. They can be firmly determined to prevent freedom and rights of every single person from being infringed upon. In this way, they can be confident that the judiciary has fulfilled its roles in shaping a democratic country where the rule of law is exercised properly as a governing principle.     

Omnis definitio periculosa est: on the definition of the term "embryo" in the Human Fertilisation & Embryology Act 1990

In adopting a purposive interpretation of the definition of the term "embryo" in the Human Fertilisation & Embryology Act 1990, the Court of Appeal judgement in R(on the application of B. Quintavalle on behalf of Pro-Life Alliance) v. Secretary of State for Health effectively stifled democratic debate on the development of therapeutic cloning techniques. Instead of being evidence of the flexibility of of the statute to adapt to the rapid evolution of scientific techniques, the judgment bears witness to a certain dependence of the law on scientific criteria and moreover, raises the question of legitimate judicial function. Indeed, judges should not be seen to be deciding questions of social choice that should ultimately be decided through the democratic process. Although the purposive approach may be objectively justified, it is suggested that the appeal judges erred in their appreciation of the very purpose of the 1990 Act. It is argued that the Parliamentary debates in 1990 illustrate that the purpose of the 1990 Act does not go beyond the area of procreation and embryo research in this context. Consequently, it is claimed that no economy should have been made on a full democratic debate. By preventing such a debate, the Court of Appeal appears to admit that the law has become servile to the scientific, political and a fortiori economic, interests at stake.     

Authority, Equality and Democracy

Abstract.  The purpose of this essay is to argue that considerations of fairness play an essential role in the justification of democratic decision procedures. The first part argues that considerations of fairness form part of a practical authority's legitimacy, and that in the political context, those considerations of fairness entail a principle of equal distribution of political power. Subsequently, the article elaborates on the kind of equality which is required in democratic procedures, arguing that different principles of equality should apply to the deliberation and the decision stages of democracy. Finally, the article concludes with a few sketchy remarks on the possible relations between considerations of fairness and soundness of democratic procedures.     

Experts, Juries, and Witch-hunts: From Fitzjames Stephen to Angela Cannings

Angela Cannings's successful appeal against her convictions for murder has revived an old controversy about the competence of juries to evaluate expert evidence. In response to criticisms of the jury system in the wake of a series of controversial poisoning trials, the Victorian jurist J.F. Stephen argued that juries were well equipped to decide on behalf of the community which experts should be treated as authorities, whose opinions the lay public could accept for practical purposes as 'beyond reasonable doubt'. Such practical decisions did not, Stephen argued, require that juries fully understand the experts' reasons for their conclusions. This article draws on recent work in social epistemology to argue that Stephen's view of the jury remains tenable, and that his authoritarian arguments can be recast in more democratic terms. It also concurs in Stephen's blunt recognition that the courts' need to make decisions despite the uncertainties of science renders some convictions of the innocent inevitable.     

Attitudes and beliefs about domestic violence: results of a public opinion survey: I. Definitions of domestic violence, criminal domestic violence, and prevalence

This study reports analyses and findings from a public opinion survey designed to explore beliefs about domestic violence (DV)-what it is, when it is against the law, and how prevalent it is. The project interviewed 1,200 residents from six New York communities. The analyses reveal substantial firsthand and secondhand experience with DV and strong consensus that acts of physical aggression should be labeled as DV, but substantially less certainty about the illegality of the abusive behaviors. Overall, the respondents were less inclined to define women's aggressive behavior in pejorative or unlawful terms than men's. Respondents believed that DV was common in their communities, and that it affected a significant minority of couples. Multivariate analyses provide little support for conventional wisdom about the impact of socioeconomic background on tolerance for or knowledge about DV, although gender, generation, and secondhand familiarity with DV incidents play a role in opinions and beliefs.     

现代行政法上的指南、手册和裁量基准

本文以英国的"非正式规则"为参照系,结合我国实践和理论,逐一分析了指南、手册和裁量基准的效力、公开、制定主体和程序问题。指出它们对内因行政科层制而具有拘束力,对外呈现多样化的效力形态,应运用合法预期、"直接的权力因素检查"和相关考虑等理论,对其内容和条文逐个分析判断。它们提供了有益的裁量建构,只有公之于众,才能有效规范自由裁量。可以引入类似立法的程序予以控制,但要适度克制,避免其丧失灵活性。     

Bleedings, purges, and vomits: Dr. Benjamin Rush's republican medicine, the bilious remitting yellow-fever epidemic of 1793, and the non-origin of the law of informed consent

To the consternation of many physicians, the modern law of informed consent imposes certain constraints on their actions, not least that they respect patients' decisions to redefine at will the scope of care. The consequences of this transfer of power are often a nuisance and occasionally fatal, but always a reflection of democracy's leveling march: Physicians now take orders rather than give them. However frustrating the modern preference for process over result might be, we should ask ourselves-before condemning the law's evolution-about the consequences for patients' health of a more radically democratic practice of medicine. This paper proposes to examine this question as framed by the life of Dr. Benjamin Rush, who, in addition to signing the Declaration of Independence, crafted a medical practice uniquely suited to the young Republic's presumed moral character: Self-aware sufferers would promptly identify their own maladies and courageously treat themselves. In the end, his enterprise was flawed because his democratic instincts misled not only his scientific inquiries (disease is complex, not simple) but also his practice recommendations (patients are scared, not intrepid). Reflection on Rush's failed project should give pause to those who lament the passing of paternalistic medicine, for the law's requirements, however onerous they might be, tolerably accommodate both patients' need for physicians' expertise and our democratic belief that consent is the fundamental precondition of all rule.     

扬长避短,整合归真——谈唐代《律疏》书名的整合问题

唐代《律疏》目前流传的"唐律疏议"与"唐律疏义"两种书名及与之相关的格式表述,各有其长短与利弊。整合的办法是扬二者之所长,避二者之所短:现称"唐律疏议"者,应坚持在各律条之【疏】下用"议"表解释之主要文体,书名则应改称为"唐律疏义";现称为"唐律疏义"者,应坚持此符合其制订初衷及词义发展规律的书名,但其各律条之【疏】下则必须改"义"为"议",以全面符合立法者原创之文体表述。作者此观点已在其新书的撰写过程中付诸实施。     

从检察制度的历史与比较论我国检察官之定位与保障

改革开放以来,我国与国际社会交流频繁,特别是受美国制度影响,一直有将检察官行政官化的呼声。但是,从检察制度的历史渊源以及各国检察官类型的比较研究可以得知,纯粹行政官化的检察官并不契合我国社会。我国应将检察官定位为司法官,并仿效大陆法系国家,给予其充分的身份保障。     

Granting the Right to Vote for the European Parliament to Resident Third‐Country Nationals: Civic Citizenship Revisited

The EU grants rights to third‐country nationals (TCNs) and strives to approximate their rights to those of Union citizens. Up to now, the approximation has extended to social and economic matters. This article investigates whether political rights, notably voting rights for the European Parliament (EP), should also be approximated. To this end, the analysis applies Dahl's democratic principles of ‘coercion’ and ‘all affected interests’ as well as Bauböck's principle of ‘stakeholding’ to the position of TCNs in the EU. Against that background, it explores the relevance of arguments for and against granting TCNs the right to vote in European elections and submits that voting rights should be granted to long‐term resident TCNs. The author then proposes including TCN voting rights in the legal framework for EP elections and concludes by suggesting the use of the concept of civic citizenship to express political approximation of TCNs to EU citizens.     

The Subjects of Collectively Binding Decisions: Democratic Inclusion and Extraterritorial Law

Citizenship and residency are basic conditions for political inclusion in a democracy. However, if democracy is premised on the inclusion of everyone subject to collectively binding decisions, the relevance of either citizenship or residency for recognition as a member of the polity is uncertain. The aim of this paper is to specify the conditions for being subject to collective decisions in the sense relevant to democratic theory. Three conceptions of what it means to be subject to collectively binding decisions are identified and examined, referring to those subject to legal duties and legal powers or to those subject to legal duties and state institutions. The contrast between them is most clearly illustrated in relation to non‐residents, those not present in the territory of the state. The extraterritorial dimension of the law thus highlights a fundamental ambiguity in the theory of democracy concerning the extension of political rights.     

法治视野下的电子民主

互联网时代的到来,催生了电子民主的发展。电子民主属于直接民主、纵向民主、大众民主、分散与集中相结合的民主。电子民主可以促进公民的政治参与,强化对公权力的监督,促进精英法治与大众法治的沟通,使政治生活更加民主。但电子民主也具有虚拟性、欺骗性、非理性、缺乏客观性等不足,容易陷人无政府状态。电子民主对中国法治建设具有重大的价值。但就司法而言,司法虽然应当倾听公众的声音、尊重电子民主,但同时应当注意与网络民意保持一定的距离,以避免“民意”绑架了司法、沦落为大众非理性的帮凶。     

The Cocoon of Power: Democratic Implications of Interinstitutional Agreements

Abstract:  This article assesses Interinstitutional Agreements (IIAs) in terms of democratic theory. It starts from the premise that democratic rules as developed in the national context may be used as a yardstick for supranational governance as well. Thus, parliamentarisation of the Union is defined as an increase in democracy, although relating problems such as weak European party systems, low turnouts, and remoteness are not to be neglected. The article evaluates several case studies on IIAs in this vein and asks whether they strengthen the European Parliament or not, and why. It arrives at conclusions that allow for differentiation: empowerment of the European Parliament occurs in particular when authorisation to conclude an IIA stems from the Treaty or from the power that the European Parliament has in crucial fields such as the budget and is willing to use for this purpose. Success is, however, not guaranteed in every case, and is sometimes more symbolic than real. However, a democratic critique must also stress negative consequences of IIAs in terms of responsivity, accountability, and transparency.     

The Institutionalised Participation of Management and Labour in the Legislative Activities of the European Community: A Challenge to the Principle of Democracy under Community Law

The legislative procedure established by Articles 138-139 of the Amsterdam Treaty is sensitive with regard to democratic prerequisites, but does not, in the final analysis, breach the formal principle of democracy established under Community law. Although the establishment of a parliamentary right of consultation is desirable, sufficient democratic legitimation is nonetheless supplied by virtue of Council and Commission participation within the legislative procedure and by their unlimited right to examine and reject substantive provisions designed by management and labour. By the same measure, the participation of management and labour in the Articles 138-139 legislative process is not of itself sufficient to create democratic legitimation. However, although management and labour organisations might never claim to represent the public of Europe as a whole, they can contribute to the 'substantive' legitimacy of European social law-making where they are adequately representative of persons and groups affected by EC legislative acts and take positive steps to ensure that the interests of such persons are reflected in secondary EC law. Accordingly, the Commission and the Council should review the representative nature of organisations engaged in European social law-making, paying particular attention to under-represented interests and, if necessary, should also make use of their right of rejection where privately negotiated agreements neglect these interests.