解读刑事法治

刑事法治是法治的根本标志之一 ,而刑事法治就意味着以刑法限制国家的刑罚权 ,罪刑法定原则也就成为了刑事法治的必然首选。而我国传统的法律文化认为 ,刑法是阶级统治的工具 ,是无产阶级专政的“刀把子”。因此 ,要把我国建设成为一个现代的社会主义的法治国家 ,除了健全法律制度之外 ,更重要的是 ,我们必须更新观念 ,正确认识刑法的功能 :刑法不仅保护国家的利益、维护社会的稳定 ,也保护公民个人的合法权益。刑法是人权保障的“大宪章”。     

Tolerance and Liberal Justice

Tolerance, the mere “putting up” with disapproved behaviour and practices, is often considered a too negative and passive engagement with difference in the liberal constitutional state. In response, liberal thinkers have either discarded tolerance, or assimilated it to the moral and legal precepts of liberal justice. In contradistinction to these approaches I argue that there is something distinctive and valuable about tolerance that should not be undermined by more ambitious, rights‐based models of social cooperation. I develop a conception of tolerance as a complementary principle and an interim value that is neither incompatible with, nor reducible to, rights‐based liberalism. Tolerance represents a particular, non‐communitarian expression of the general dictum that the liberal state, having released its citizens into liberty, rests on social presuppositions it cannot itself guarantee.     

Above the Roof,Beneath the Law: Perceived Justice behind Disruptive Tactics of Migrant Wage Claimants in China

The way in which citizens in developing countries conceptualize legality is a critical but understudied question for legal consciousness and legal mobilization studies. Drawing on participatory observations and extensive interviews from western China, this article explores the subjective interpretations of migrant wage claimants on law and justice behind their disruptive actions. Their perception of justice differs starkly from what the law stipulates as target, evidence and proper procedures. Who shall be held responsible? What constitutes evidence? When shall they be paid? How much? Their perceptions also differ from the attitude “against the law” found among members from disadvantaged social groups in the United States. The Chinese case of legal perception is shaped by the moral precepts ingrained in the culture, and more importantly, by the lopsided relationship between migrant workers and the political and business elite. It thus points to the daunting barriers in channeling the ever‐growing number of social conflicts into court.     

Traditional Local Justice,Women’s Rights,and the Rule of Law: A Pluralistic Framework

The paper focuses on the application of a particular conception of the rule of law to situations characterized by traditional local justice and legal pluralism. While in the twentieth century international rule‐of‐law programmes were directed almost exclusively at state legal system, they have recently begun to take into account traditional local justice, namely, those institutions which in many world regions represent the main form of effective justice. Starting with a review of the positive and negative aspects of traditional local justice from a rule‐of‐law perspective, the paper underlines the widespread lack of protection of human rights, particularly of women’s rights. Discussing vertical rule‐of‐law functions in contexts of legal pluralism the paper stresses the advantages of an approach to the promotion of the rule of law based on mutual recognition and influence between different legal authorities and sources. It is argued that this “interactive” approach appears best suited to the complex frameworks of relations that characterize present‐day systems of deep legal pluralism. Finally, the paper underlines the correspondence between this approach and a conception of the rule of law as an ideal framework of plural interactions characterized by the limits imposed on the law by the law itself, and it discusses its advantages from the perspective of human rights and women’s rights promotion.     

Crimmigration at the Local Level: Criminal Justice Processes in the Shadow of Deportation

In recent decades, authorities have adopted a number of programs that tether the criminal and immigration enforcement apparatuses in novel ways. This mixed methods case study assesses the impact of such programs on local criminal justice processes and outcomes in King County, Washington. Although the empirical research on the effects of such programs is scant, the emerging literature on legal hybridity suggests that the enmeshment of the criminal and immigration systems is likely to enhance the state's power to detain and punish. The quantitative results support this hypothesis: non‐citizens flagged by immigration authorities stay in jail significantly longer than their similarly situated counterparts. Qualitative focus group interviews with prosecuting and defense attorneys identify four key mechanisms by which Immigration Customs and Enforcement detainers alter the incentive structure, impact decisionmaking, and extend jail stays for non‐citizens. Together, these findings suggest that immigration law and the threat of deportation now cast a long shadow over local as well as federal criminal proceedings, and enhance penal pain for non‐citizens. Implications of these findings for the “crimmigration” literature and research on the effect of citizenship status on criminal justice outcomes are discussed.     

The “Right Paper”: Developing Legal Literacy in a Legal Self‐Help Clinic

Legal self‐help is the fastest‐growing segment of legal services in the United States, and a significant addition to the repertoire of programs aimed at opening up access to justice in the civil legal system. Few studies, however, have examined how such services work in practice. Through ethnographic research and analysis of meetings between unrepresented litigants and attorneys offering advice in a legal self‐help clinic, this article expands the empirical investigation of access to justice to consider what legal self‐help looks like in actual practice. In this article, I follow the concept of the “right paper” to analyze the process through which legal self‐help litigants develop legal literacy, including the role of lawyers in helping them to do so. The article concludes by discussing what such practices reveal about recent efforts to open up access to justice and also about the dynamics through which people come to think about law and, especially, how to use it.     

人际同构:正义观念的衍更

正义是法律的内在根据和法上之法 ,正义也是弥久常新的人类精神现象。当今世 ,人与自然、生态、环境的冲突已危机四伏 ,必得有全新的法律制度和观念形态为之救济 ,而正义理念的再诠释 ,则是这种法律和观念所必不可少的根据。本文认为 ,旧有的正义理念的核心是“分” ,具体有分构的正义、分配的正义、交易的正义、合作有效性的正义 ,它们只能满足人域内部的秩序和公正需求 ;新兴的正义理念将缔造“人际”秩序的公平、合理 ,其核心是“合” ,它包括摄取的正义、多样性与复杂化的正义、同构守衡的正义、互养循环的正义。法律的进化取决于正义精神的进化 ,故弘扬一种人在与自在共享的正义理念 ,将是这个世界的福祉。     

The New Face of Legal Inequality: Noncitizens and the Long‐Term Trends in Sentencing Disparities across U.S. District Courts, 1992–2009

In the wake of mass immigration from Latin America, legal scholars have shifted focus from racial to ethnic inequality under the law. A series of studies now suggest that Hispanics may be the most disadvantaged group in U.S. courts, yet this body of work has yet to fully engage the role of citizenship status. The present research examines the punishment consequences for non‐U.S. citizens sentenced in federal courts between 1992 and 2009. Drawing from work in citizenship studies and sociolegal inequality, I hypothesize that nonstate members will be punished more severely than U.S. citizens, and any trends in Hispanic ethnicity over this period will be linked to punitive changes in the treatment of noncitizens. In line with this hypothesis, results indicate a considerable punishment gap between citizens and noncitizens—larger than minority‐white disparities. Additionally, this citizenship “penalty” has increased at the incarceration stage, explaining the majority of the increase in Hispanic‐white disparity over the past two decades. As international migration increases, these findings call for greater theoretical and empirical breadth in legal inequality research beyond traditional emphases, such as race and ethnicity.     

Kumarangk (Hindmarsh Island) and the Politics of Natural Justice under Settler‐Colonialism

This article examines the impact of the application of apparently impartial principles of procedural fairness and natural justice on the construction of “authentic” and “inauthentic” knowledge of Aboriginal culture. It discusses the progression of the Kumarangk (Hindmarsh Island) court cases and the legal construction of public participation in the making of political decisions affecting Aboriginal interests in land. In examining the politics of competing interests in land, this article reflects on the tension between Indigenous interests in land and settler developmentalism in relation to the Australian jurisprudence of procedural fairness and natural justice. The arguments running through the article concern the questions of the ways in which the liberal restraint on power is embodied in the impartial principles of administrative law, where that power creates rather than infringes upon rights, why it generates a particular legal construction of Aboriginal interests in land and cultural heritage, and the extent to which this plays a role in the maintenance of relations of settler‐colonial dispossession.     

Effects of Defects—Action or Argument? Thoughts about Deryck Beyleveld and Roger Brownsword’s Law as a Moral Judgment*

Abstract. Two claims lay the foundation for Beyleveld and Brownsword’s legal theory. The first says that immoral laws cannot be law, the second that rights to freedom and welfare can be proven to be logically necessary given merely the phenomenon of agency. The author argues that both claims are too strong. The first is an overidealization of law, which fails to do justice to its double nature as a real as well as an ideal phenomenon. The second must fail, for a moral “ought” cannot be deduced from a merely instrumental “ought.”     

The Human Side of COVID‐19

The COVID‐19 pandemic has had, and continues to have, a broad, deep, and pervasive impact on our lives, our work, and how our justice system functions. While it is easy to contemplate the “system” as a massive behemoth that is impervious, impersonal, and impenetrable, the truth is that the “system” is made up of people. The men and women whose work is the building blocks of the justice system are individuals, each with their own narrative, experience, perspective, and role in the administration of justice. To understand the system and the impact of COVID‐19, it is essential to understand the stories of those who work in the system. This article presents the individual and human stories of four professionals whose professional lives are a part of the justice system. Each of these professionals tells their personal story of COVID‐19 and reflects on how the pandemic affected them and their approach to the work that they do.     

A Biosemiotic Body of Law: The Neurobiology of Justice

We offer a theory regarding the symbolism of the human body in legal discourse. The theory blends legal theory, the neuroscience of empathy, and biosemiotics, a branch of semiotics that combines semiotics with theoretical biology. Our theory posits that this symbolism of the body is not solely a metaphor or semiotic sign of how law is cognitively structured in the mind. We propose that it also signifies neurobiological mechanisms of social emotion in the brain that are involved in the social and moral decision-making and behavior that law generally seeks to govern. Specifically, we hypothesize that the symbol of a collective human body in the language of law signifies neural mechanisms of pain empathy which generate a virtual, neurally simulated, emotional sense of sharing the feelings or pain of others and of thereby being one-in-body with or virtually equal to them. We speculate that this may be the neural basis of what is signified in legal and political theory as the “body politic” or “sense of equality,” because neuroscience and psychiatry further suggest that such pain empathy may provide the natural, emotional motivation to think and act in a rights-based manner. We conclude that misunderstanding of these neural mechanisms of pain empathy and related misinterpretation of this corporeal symbolism for the same may have long resulted in legal discourse that misinterprets the function of “pain” in the law and misinterprets the associated positive law, specifically the law regarding individual, equality-based rights and criminal justice, in particular, punishment theory.     

Law and Family Formation Among LGBQ‐Parent Families

This article addresses how the law affects family formation among families with lesbian, gay, bisexual, and queer (LGBQ) parents in the United States. Our discussion draws on a socio‐legal approach to law that focuses not only on the law on the books (what we refer to as “legal barriers”) but also on issues like how the law is practiced, how people experience the law in everyday life, and how the law serves as an interpretive framework through which people understand themselves and their families (what we refer to as “social barriers”). In our review, we highlight how attorneys can play a role in valuing and advancing rights for LGBQ‐parent families and LGBTQ prospective parents.     

实现正义——公平审判权在中国的发展

文章强调了一个有效的辩护援助体系对保障公平审判权的必要性。为了保障穷人能够平等地享有正义,一个国家必须拥有一套提供给他们律师的机制。文章分析了促使一个国家为她的公民建立有效公平审判权的关键因素。文章首先论述了,中国的法律援助体系在其公民权利保护进程中扮演的关键角色和继续发展法律援助对中国长远利益的必要性。其次,本文表明了,国际组织怎样通过培训和能力培养方式在支持权利保护的进程中发挥巨大作用。最后,文章指出只有充分尊重中国的自治,国际合作才能发挥更大作用。文章特别展示了IBJ的经验,以显示国际组织如何与中国政府开展合作,成功地提高中国公民权利保护水平。     

The future of criminal justice administration and its impact on civil liberties

Criminal justice agencies have the means to increase their efficiency and to bring a larger proportion of the population within their net of surveillance and control. In the next twenty or forty years this form of control over citizens will increase. Simultaneously, growing bureaucratic and legal control mechanisms will prevent such control from becoming tyrannous. Over a longer period, given the possibility of a “no-growth” economy and a decline in the social and economic system that supports traditional civil liberties, there is a threat that an efficient criminal justice system would support tyrannous government. In the future tyranny can be avoided by the conscious policy of limiting the full potential of control over citizens by the criminal justice system.     

Street‐Level Tort Law: The Bureaucratic Justice of Liability Decision‐Making

Most legal scholarship on tort focuses primarily on judicial decisions, but this represents only a limited aspect of tortious liability. The vast majority of decisions concerning tortious liability are made by bureaucrats. Unavoidably then, there are two tiers of justice in tort law. This article focuses on the lower tier – bureaucratic decision‐making – arguing that the justice of bureaucratic decisions on tort should be considered on its own terms and not by judicial standards. We develop the notion of bureaucratic justice, applying a normative framework originally set out in relation to public administration. This enables an evaluation of the strengths and weaknesses of different ways of bureaucratically determining liability claims in tort. The regimes discussed concern the liability of public authorities, but decision makers comprise both state and non‐state actors and the bureaucratic justice framework is, in principle, applicable to understand and evaluate the liability of both public and private actors.     

接近正义寻求和谐:案例指导制度的法哲学之维

案例指导制度是既不同于大陆法系的判例,也不同于普通法系中判例法的一项新制度,是我国司法机关在既有的制度框架和现行司法体制基础上所进行的一项接近正义、寻求和谐的制度创新。一方面,案例指导制度能够解决因制定法自身缺陷与不足所造成的同案不同判的问题,确保司法平等,实现形式正义。另一方面,案例指导制度有助于实现法律调整机制结构的合理化,即实现硬性约束和软性约束的有机结合,进而形成对社会生活有效回应的弹性法律调整机制。     

论作为第三种规范的法律正义

将法、正义、法律正义视为同一事物的意念 ,是一个需待澄清的误解性意念。法、正义、法律正义不仅有重合会通的一面 ,更有各自的界限。法是一种常见的制度规范 ,正义是一种高层次伦理规范 ,而法律正义则是融合了法和正义两种要素的第三种规范。法律正义也是一种正义 ,是正义中的基本正义、有形正义和正义中的强者。法律正义也是一种法律规范 ,是高层次法律规范 ,是区别于恶法劣法的良规良法 ,是理想和现实相结合的法律规范。明辨三者的界限 ,方能洞知法有良恶优劣的分别 ,完整地认知法的面貌 ,倾力于建设以良法美制为基础的现代法治国家     

司法对法律体系的完善

人民法院的司法活动对完善法律体系具有不可替代的独特作用。司法通过作用于法律体系的微观向度、调适过程、法与社会联系的建立、成文法固有缺陷的克服来完善法律体系。完善的具体方式包括司法解释、法律解释、指导性案例、司法审查、司法建议、参与和配合立法、送请有权机关审查和裁决、提出法律案等。对于通过司法完善法律体系,需要树立正确的理念。