THE CRIMINOLOGY OF GENOCIDE: THE DEATH AND RAPE OF DARFUR

Nearly 400,000 Africans may have been killed in racially motivated, lethally destructive, state supported, and militarily unjustified attacks on the farms and villages of the Darfur region of Sudan. Using victimization survey data collected from Darfurian survivors living in refugee camps in Chad, and drawing on conflict theory, we present evidence that the Sudanese government has directly supported violent killings and rapes in a lethally destructive exercise of power and control. In the language of the Geneva Genocide Convention, these attacks have inflicted on African tribal groups "conditions of life calculated to bring about their physical destruction in whole or in part." The data include explicit evidence of the central mediating role played by racism in the attacks. There is little or no evidence from the surveys to support the claim of the Sudanese government that the attacks have been aimed at rebel groups as a counter-insurgency strategy. The Sudanese government claims are by this analysis not credible as self-defense arguments, but rather of the exercise of power and control through denial. Further forms of such denial are considered, including the slowness of modern American criminology to advance the study of genocide.     

Markets and Corporate Conflict: A Substitution-Cost Approach to Business Litigation

This paper examines the phenomenon of conflict escalaton in business relations. A theory of when conflict between firms will proceed from informal relationship-preserving norms to more formal and destructive end games involving litigation is developed and tested. The central theoretical claim is that substitution costs serve as an impediment against the escalation of conflict. Data on market concentration and dollar flows between aggregate markets in the economy are used to develop measures of substitution costs. Measures of substitution costs and trade figures are also used to describe power advantages in markets. The theory is tested through a series of regression models. The main findings are that (1) when substitution costs are high, parties are less likely to escalate conflict and (2) asymmetric market relations result in less conflict escalation than symmetric ones. Empirical analysis indicates that substitution costs are related in predictable and meaningful ways to conflict escalation and business litigation.     

司法是人权保障的最佳方式

司法是人权保障的最佳方式。一方面 ,它是由权利本身的缺陷所决定 ;侵权是必然发生的 ,因此救济权利成为必要。权利救济的最佳方式是司法救济。另一方面 ,它是由司法的特性所决定 ;司法具有中立性 ,司法过程是建立在正当程序基础之上的 ,以及司法判决是由合格的法庭和法官作出的。     

The determinants of health policy, a case study: regulating safety and health at the workplace in Sweden

This article analyzes and criticizes the " technocratic " view of occupational health and safety policies, which sees the values of the personnel in "post-industrial" regulatory agencies as the most important determinant of those policies. It takes an alternate position, which explains occupational health and safety policies as primarily resulting from the different degrees of political power of the two major classes (capital and labor), and from the set of influences exerted on the regulatory agencies by the instruments (e.g., parties, unions, trade organizations) of those classes. It shows how an analysis of the historical evolution of those classes in Sweden and their conflict in both civil and political societies explains Swedish occupational health and safety policies better than a mere analysis of the regulators' views. And it concludes that the occupational health and safety policies in Sweden are not identical to those in the U.S.--as the " technocratic " theorists assume--but rather offer more protection to the workers than U.S. policies do. This situation is a result of labor having more power in Sweden than it has in the U.S. The different class formations and class behavior in the two societies are compared, and the implications of this comparison for occupational health and safety policies are discussed.     

Current Illusions and Delusions about Conflict Management—In Africa and Elsewhere

This paper provides a critical perspective on the use of U. S. alternative dispute resolution (ADR) approaches for managing conflict in African and other communities. It argues that imposition of American ADR as a condition for foreign aid or capital investment is deeply problematic, and urges a more sophisticated analysis of the power dimensions and ideological basis of ADR. When viewed as an ideologically laden paradigm for how conflict should be resolved (i. e., a conflict paradigm), ADR can be seen as carrying troubling baggage. For example, ADR approaches imported from the United States deal with dispute resolution simply in terms of mechanisms or techniques, ignoring substantive issues central to conflict management in African and other communities. The entire discourse surrounding ADR pays insuficient attention to problems with terms such as modern or traditional, and encourages an ingenuous denial of the effects of inequality in power and money on conflict resolution. This ideological baggage renders unreflective imposition of ADR incompatible with the best interests of African communities. The authors urge a more complete and objective analysis of the global ADR revolution-one that takes a broader perspective.     

The Incidence and Structure of Conflict on the U.S. Court of Appeals for the Federal Circuit

In 1982, Congress established the Court of Appeals for the Federal Circuit, a specialized court, with the objective of reducing judicial conflict and harmonizing circuit law in specific policy areas of special complexity. This article examines the incidence and determinants of judicial conflict on the U.S. courts of appeals, focusing specifically on the Federal Circuit. Using international trade and customs regulation cases decided during the 1982 to 1995 terms, the analysis reviews three possible explanations of judicial conflict: policy-oriented, sociolegal, and organizational. The analysis shows that conflict appears in 8.4 percent of the trade and customs regulation decisions rendered by the Federal Circuit during the period of study. The policy direction of Federal Circuit decisions and the court's hierarchical relationship with lower specialized courts provide the strongest explanation for the emergence of conflict on the court. Organizational factors such as panel composition evinced rather anemic explanatory capacity. The results raise an important functional similarity between the Federal Circuit and the generalist courts of appeals. Contrary to the laments of legal practitioners that conflict on the Federal Circuit is excessive relative to conflict on the generalist circuit courts, this analysis finds little support for that claim. Rather, the level of overt conflict on the court is actually low and corroborates conflict levels that have been reported for other U.S. courts of appeals.     

SOCIAL THOUGHT AND SOCIAL STRUCTURE

The substantive area of criminology has increasingly become politicized with new paradigms arising to challenge the traditional perspectives. For the purpose of this analysis the voluminous amount of criminological research and writing is placed within three major paradigms: (1) kinds of people, (2) kinds of environments, and (3) power/conflict. The increasing articulation of the power/conflict paradigm has brought about an intensification of conflict in society and among criminologists. The future of criminology and subsequently of criminologists will be determined by the interplay of these and emerging other paradigms among academic criminologists and their competing expression among the public at large.     

国家治理体系现代化的主体之维

国家治理主体是国家治理体系的组成部分,具有多元性、拟制性、平等性等特征。与集中统一的管理不一样,国家治理强调多元主体的共治格局。政党、国家、政府、社会组织、经济组织、公民等都是参与国家治理的主体。从法学的角度看,这些主体都是法律拟制的产物,按照社会契约论都应以平等身份参与治理。以权力、权利主体作为依据,可把国家和社会的治理主体分为官、民两类。以此作为国家治理的主体来构建法律关系,可以发现权力冲突、权力与权利的冲突、权利冲突构成了法治国家、法治政府、法治社会所要解决的主要问题,也是国家治理的主体之维所要重点探讨的理论问题。     

Temporal Limits on the Legislative Mandate: Entrenchment and Retroactivity

According to the general wisdom, legislatures lack both the power to "entrench" their enactments against alteration by their successors and the power to "retroactively" undo the efforts of their predecessors. The author argues that, rather than being in conflict, these principles share a common theme. Legislatures operate as agents of the people under constitutionally defined mandates that are limited in time as well as scope. Actions that transcend—either forward or backward in time—the temporal delegation of authority conferred by periodic elections do not bind the electorate. In the first half of the article the author suggests that an understanding of the rationale behind the entrenchment prohibition can help shed light on a diverse group of issues including congressional power to prescribe internal rules of operation, constitutional amendment procedures, and legislative impairment of contracts. In the second half of the article the author takes issue with the traditional objection to retroactivity grounded on vested rights and unfulfilled expectations. In its place he proposes a theory of retroactivity embodied in republican principles concerning the temporal relationship between the people and their legislative agents.     

CHILD SUPPORT GUIDELINES

From a conflict resolution perspective, it is clear why the child support guidelines are not going to reduce the adequacy and compliance gaps in child support payment conflicts between parents. As it stands, the conflict over equally sharing child support is destructive rather than positive. The guidelines do not reframe the conflict for the parents, enabling them to believe the interests of children are more important than their own interests to win the child support battle. To transform conflict from destructive to positive, the elements of conflict–expression of the conflict, scarce resources and rewards, and interdependency–must be transformed. It is argued that the guidelines do not transform the conflict but facilitate it. Courts and attorneys are also significant players in the child support conflict.     

判定法律冲突之问题研究简

法律冲突之普遍存在一般说来只是普通人特别是法律人的一种感觉，由于法律冲突的存在及其后果往往涉及国家权力的行使和个人权利的保障，因此，法律是否真正存在冲突则既不是凭借普通人的感觉也不是依靠法律人的判断，而是由法定的国家机关依据一定的程序和方法予以认可并加以解决的。     

Shame,anger, and conflict: Case study of emotional violence

This paper proposes a new theory and method for understanding emotional violence: conflict results from threats to the social bond. Protracted conflict may be a result of social-emotional separation and unacknowledged shame. A single case is used to analyze the dynamics of marital conflict. Discourse is analyzed during an actual quarrel; sequences of emotion are traced prior to moments of escalation. The results indicate that not only did anger occur during conflict, but also it was preceded by unacknowledged shame. Sequences within and between spouses alternated from emotional separation and shame, to anger, to disrespect, to further separation and shame, and so on. Interaction in this couple was marked by alienation rather than solidarity.     

我国环境冲突研究回顾及未来展望——基于CSSCI文献(1998-2020)的可视化分析

环境冲突是社会冲突的主要类型之一,环境冲突的有效治理是防范化解由环境问题引致的社会冲突的关键。本文借助Citespace软件,以1998-2020年间中文社会科学索引(CSSCI)数据库收录的135篇环境冲突相关文献为研究样本,综合采用文献计量和知识图谱分析两种方法对样本进行分析。研究发现,我国环境冲突文献发表数量各年份起伏较大,产生了高产学者和发文量较多的科研机构,关键词聚类分析确定了环境冲突的4个主题,邻避冲突是环境冲突领域研究的重点。未来应加强环境冲突研究领域研究者共同体、研究机构共同体建设以及多学科的融合,加强对大数据、区块链技术融入环境冲突治理等前沿问题的研究。     

宪法的哲学之维

宪法是用以调整公民与国家之间冲突的法律规范。权力和权利的关系协调问题贯穿于宪法的始终,二者的有机协调是宪政秩序得以型构的前提基础。公民与国家的这样一种冲突关系,表现在宪法中,就是限权与保权的关系。它作为宪法的调整对象,表现出双重的属性:立足于已然之冲突,宪法应着重于矫正;立足于未然之冲突,宪法应着重于规制。矫正与规制的关系及其解决,成为宪法哲学的基本问题。宪法哲学的一切命题都由此展开,并为此服务。     

论行政规划中的私益保护

行政规划中的利益冲突，主要是公共利益与私益的冲突，两者的冲突体现为权力与权利的博弈，两者之间的力量对比决定了必须加强对私益的保护。在当前，应当通过确立行政规划中的损失补偿制度和完善行政规划的救济制度来加强对私益的保护。     

‘Shut up and bill’: workplace bullying challenges for the legal profession

Competition, work intensification and requirements for efficiency are some of the hallmarks of the modern work environment. Pressures in such settings can result in stress caused by long work hours, a lack of work–life balance and interpersonal conflict. The legal profession is prone to negative impacts due to its highly competitive environment. This, coupled with established hierarchical structures, significant power imbalances and pressure to measure work input rather than output (billable hours), can create ‘toxic’ settings. This paper reports the findings of a study of dignity and respect in the legal profession. Results indicate that many of the issues arise due to negative workplace cultures brought about and perpetuated by work practices and the leadership of the firm. Often the prevailing culture of intense competition, and a win-at-all-costs mentality, has negative repercussions for the security and standing of individuals. Those with position and power use work practices such as billable hours to push others to perform at extraordinary levels, in turn adversely affecting their well-being, quality of work life and tenure in the organisation or profession. The way forward would require a multi-pronged approach and cooperation and collaboration by the relevant stakeholders: regulators, professional associations, institutions and individuals.     

我国集体协商制度实证主义建构的法哲学反思

我国集体协商制度之所以未能实现和谐劳动关系的规制功能,主要原因之一,在于其制度建构的实证主义哲学观使实现集体行动合法化、体现劳资自治的"争议权"在制度构造上缺乏合法地位。虽然"争议权"的行使可能引发法的正当性与安定性之间的矛盾,但是,基于自然法的理论分析,"争议权"的行使与维持劳动关系稳定的目标并不冲突。在追求劳动关系正义的基本宗旨下,通过拓宽集体交涉的法律途径可实现争议权在实证法上的合法地位。     

公司董事表见代表制度之我见

本文从公司角度阐述了表见代表制度的成因及其意义 ,分析了该制度的适用范围 ,并运用经济分析的方法 ,重点分析了公司章程公示力的规定同公司董事表见代表制度之间的冲突问题 ,认为后者应优于前者适用 ,同时认为公司章程不应就公司的经营范围作出规定。最后 ,分析指明了公司董事表见代表的构成要件。     

公诉权与侦查权的冲突与衡平

侦查权和公诉权是国家在刑事诉讼中的两项重要权能。就其性质而言，侦查权和公诉权都是承担追诉犯罪职能的公权力，具有一定的同质性。但由于侦查权和起诉权分属于不同的国家机关行使，且各自的程序任务不尽相同，因而两种权力在服务于刑事诉讼目的的过程中难免会发生分歧，甚至有相互冲突的情形，从而导致程序效率的消减。因此，在刑事诉讼中适度衡平侦查权和公诉权的权力配置，既是程序科学运行的技术性制度安排，也是防范权力滥用的程序法治问题。