法治的合法性追问

社会转型时期,合法性问题异常突出,而合法性概念在中西语境中有很大的差异.法治是西方文明发展的成就,是西方文化不可分割的组成部分.中国传统社会虽然缺乏类似于西方那样的法治环境,但当代中国同样面临合法性的诉求.在依法治国、建设社会主义法治国家的现代化进程中,尤为重要的是公众对于法治的信仰和认同.     

Comparing the legitimacy and effectiveness of global hard and soft law: An analytical framework

The international norms that are developed as tools of global governance can be placed on a continuum from traditional “hard law” treaties to the vaguest and voluntary “soft law.” In this article we develop an analytical framework for comparing norms on different positions along the continuum, thus for comparing international hard and soft law. We root the framework in both the rationalist and the constructivist paradigms of international relations by focusing on two overarching evaluative criteria: effectiveness and legitimacy. These broad concepts are divided into smaller building blocks encompassing mechanisms through which norms can exert influence; for example, by changing material incentives, identities, and building capacity, and by contributing to building source‐based, procedural, and substantive legitimacy. We illustrate the applicability of the framework with three norm processes of varying degrees of “softness” in global climate governance.     

An indirect legitimacy argument for a directly elected European Parliament

Can a directly elected European Parliament help deliver standards by which the European Union can be indirectly legitimated through its component national democracies? This article argues that the Union can be indirectly legitimate where it helps member state democracies meet their own obligations to their own publics. The Union can do just that by managing externalities in ways needed to secure core values of justice, democracy and freedom from arbitrary domination within member states. Yet that poses a predicament: for if any one member state has an interest in imposing negative externalities or in freeriding on positive externalities provided by another, then so may its voters and democratic institutions. The article argues a directly elected European Parliament can help manage that predicament both by identifying externalities and by ensuring their regulation meets standards of public control, political equality and justification owed to individual national democracies.     

The importance of input and output legitimacy in democratic governance: Evidence from a population-based survey experiment in four West European countries

The study of subjective democratic legitimacy from a citizens’ perspective has become an important strand of research in political science. Echoing the well-known distinction between ‘input-oriented’ and ‘output-oriented’ legitimacy, the scientific debate on this topic has coined two opposed views. Some scholars find that citizens have a strong and intrinsic preference for meaningful participation in collective decision making. But others argue, to the contrary, that citizens prefer ‘stealth democracy’ because they care mainly about the substance of decisions, but much less about the procedures leading to them. In this article, citizens’ preferences regarding democratic governance are explored, focusing on their evaluations of a public policy according to criteria related to various legitimacy dimensions, as well as on the (tense) relationship among them. Data from a population-based conjoint experiment conducted in eight metropolitan areas in France, Germany, Switzerland and the United Kingdom is used. By analysing 5,000 respondents’ preferences for different governance arrangements, which were randomly varied with respect to their input, throughput and output quality as well as their scope of authority, light is shed on the relative importance of different aspects of democratic governance. It is found, first, that output evaluations are the most important driver for citizens’ choice of a governance arrangement; second, consistent positive effects of criteria of input and throughput legitimacy that operate largely independent of output evaluations can be discerned; and third, democratic input, but not democratic throughput, is considered somewhat more important when a governance body holds a high level of formal authority. These findings run counter to a central tenet of the ‘stealth democracy’ argument. While they indeed suggest that political actors and institutions can gain legitimacy primarily through the provision of ‘good output’, citizens’ demand for input and throughput do not seem to be conditioned by the quality of output as advocates of stealth democratic theory suggest. Democratic input and throughput remain important secondary features of democratic governance.     

Economic Crisis and Support for Democracy in Europe

The study of the impact of the economic crisis on attitudes toward democracy tends to be focused on satisfaction with specific democratic institutions. This article expands upon previous research to explore how the current economic crisis can affect core support for democracy as a regime. Based on European Social Survey data for the Eurozone countries, the findings are twofold. It is shown, firstly, that perceptions of the state of the economy have an impact both on satisfaction with and support for democracy, and, secondly, that citizens’ support for democracy is greater in bailed-out countries. In countries that have experienced intervention, the more critical citizens and those less satisfied with the outputs of democracy are the stronger advocates of democracy. The article argues that this is connected with the tendency of critical citizens in bailed-out countries to blame external agents for the economic situation while increasing the saliency of democratic rules as a reaction to the imposition of unpopular measures.     

Reconstruction: An Agenda

This essay discusses several issues involving the theory of post-conflict reconstruction, and suggests that the concepts of reconstruction and of economic development be carefully kept apart. It explores the question of what moral and legal obligations to reconstruction the occupiers incur. Using Iraq as a case study it presents two scenarios for reconstruction: a ‘triage’ approach which relies heavily on prioritization and recognition of inherent limitations, and a ‘scattergun’ approach, exemplified by current efforts in Iraq. The latter, the essay concludes, is ineffective as a tool for reconstruction. Reconstruction has its own intrinsic merits, but using it to win the ‘hearts and minds’ of a population in order to gain support for the occupiers is unlikely to succeed.     

依法治国的历史进程及其未来发展前瞻

依法治国或者法治是一个历史的概念 ,在不同的时代有着不同的实质、内涵和发展特点。法治在近代中国的发展可以说是道路坎坷 ,行程艰难 ,有些许成功和诸多失败 ,其经验教训发人深思。新中国法治发展走了一条曲折的道路 ,沉痛的教训有之 ,成功的经验更多。瞻望未来中国法治发展 ,前景广阔 ,形势复杂 ,工程艰巨 ,需要我们从多方面寻找对策 ,做出努力 ,以尽快把我国建设成为社会主义法治国家。     

Why feed the hand that bites you? Perceptions of procedural fairness and system support in post‐communist democracies

There is widespread agreement that bad governance and corruption represent daunting threats to new democracies and developing countries. Nonetheless, mainstream research on system support and political legitimacy has to a large extent overlooked the crucial importance of public perceptions of procedural fairness for fostering public support and regime legitimacy. Taking its departure in the theory of procedural fairness, this article challenges the conventional wisdom of earlier research by arguing and demonstrating that public perceptions of procedural fairness and impartiality on behalf of the authorities are the most important determinants of system support in the post‐communist European Union Member States. The empirical analysis lends strong support to the fact that perceptions of fairness and the extent of corruption exercise a strong effect on public support for the performance of the political system and approval of regime principles.     

‘There will be burning and a‐looting tonight’: The Social and Political Correlates of Law‐breaking

In the aftermath of the August 2011 riots, politicians and commentators offered a range of explanations for the social unrest and wanton violence. Drawing on survey and focus‐group data, this paper investigates those explanations by analysing how socio‐economic, normative and political factors shape contemporary attitudes towards law breaking in Britain. The paper finds that both economic deprivation and personal moral values help to explain attitudes toward illegal behaviour, but citizens’ mistrust of political leaders and their disengagement from public affairs are also an important factor. The findings suggest that politicians who want to provide moral leadership need to do so through their actions as well as their words.     

Legitimacy and context: implications for public sector reform in developing countries

This article examines the interplay between legitimacy and context as key determinants of public sector reform outcomes. Despite the importance of variables such as legitimacy of public institutions, levels of civic morality and socio‐economic realities, reform strategies often fail to take such contextual factors into account. The article examines, first, relevant literature – both conceptual and empirical, including data from the World Values Survey project. It is argued that developing countries have distinctive characteristics which require particular reform strategies. The data analysed shows that in Latin American countries, there is no clear correlation between confidence in public institutions and civic morality. Other empirical studies show that unemployment has a negative impact on the level of civic morality, while inequality engenders corruption. This suggests that poorer and socio‐economically stratified countries face greater reform challenges owing to the lack of legitimacy of public institutions. The article concludes that reforms should focus on areas of governance that impact on poverty. This will in turn help produce more stable outcomes. Copyright © 2008 John Wiley & Sons, Ltd.     

法治中国与公民培育

现代法治之成功依赖公民之政治成熟,而适格公民之造就亦是法治之结果。中国法治进程中出现的一些问题与公民直接相关,例如公民普遍违法,公民对违法行为普遍保持沉默,公民对立法与法律实施影响较弱等等。而法治中国之推进离不开适格公民之参与。因此,亟需对公民进行培育,具体方案包括两个方面内容：一是在中小学阶段加强公民教育以提升其素质,二是有序扩大公民政治参与以提高公民政治实践能力。     

Macroeconomic performance,political trust and the Great Recession: A multilevel analysis of the effects of within‐country fluctuations in macroeconomic performance on political trust in 15 EU countries, 1999–2011

Recent cross‐national comparative studies have found no effect of countries’ macroeconomic performances on trust in national political institutions, once political explanations (most notably corruption) are taken into account. Although political trust is not determined by the comparison of national economic performance to other countries, it is argued in this article that it is affected by comparisons to their own past performance. In a multilevel, fixed effects analysis of Eurobarometer data (21 waves in 15 European Union Member States between 1999 and 2011) the extent to which within‐country variations in economic performance affect political trust longitudinally is tested. Three major conclusions are reached. First, within‐country, longitudinal changes in performance (growth, deficits, unemployment and inflation) affect political trust. Second, the impact of macroeconomic performance is stronger among the lower educated. Third, even in times of economic duress, budgetary deficits tend to undermine political trust.     

Public opinion towards welfare state reform: The role of political trust and government satisfaction

The traditional welfare state, which emerged as a response to industrialization, is not well equipped to address the challenges of today's post-industrial knowledge economies. Experts and policymakers have therefore called for welfare state readjustment towards a ‘social investment’ model (focusing on human skills and capabilities). Under what conditions are citizens willing to accept such future-oriented reforms? We point at the crucial but hitherto neglected role of citizens’ trust in and satisfaction with government. Trust and satisfaction matter because future-oriented reforms generate uncertainties, risks and costs, which trust and government satisfaction can attenuate. We offer micro-level causal evidence using experiments in a representative survey covering eight European countries and confirm these findings with European Social Survey data for 22 countries. We find that trust and government satisfaction increase reform support and moderate the effects of self-interest and ideological standpoints. These findings have crucial implications not least because they help explain why some countries manage – but others fail – to enact important reforms.     

The international rule of law

ABSTRACT

The rule of law is a moral ideal that protects distinctive legal values such as generality, equality before the law, the independence of courts, and due process rights. I argue that one of the main goals of an international rule of the law is the protection of individual and state autonomy from the arbitrary interference of international institutions, and that the best way to codify this protection is through constitutional rules restraining the reach of international law into the internal affairs of a state. State autonomy does not have any intrinsic value or moral status of its own. Its value is derivative, resulting from the role it plays as the most efficient means of protecting autonomy for individuals and groups. Therefore, the goal of protecting state autonomy form the encroachment of international law will have to be constrained by, and balanced against the more fundamental goal of an international rule of law, the protection of the autonomy of individual persons, best realized through the entrenchment of basic human rights.     

From ‘Judicial Mind’ to ‘Democratic Soul’: Law and Politics on the Bureaucratic Frontline

This article considers the relationship between law and democratic politics as manifest in the practice of ‘street‐level bureaucracy’. By glancing back to debates about citizenship and public administration between the two world wars, it sets contemporary concerns about the political constitution in broader context. In doing so, it discloses a fundamental division between conceptions of the state derived from Roman jurisprudence on the one hand, and ancient Athenian political practice on the other. It finds in the tragic dilemmas posed for street‐level bureaucrats—by the competing claims on their values—a test of individual moral agency and of democracy as the management of diversity. It concludes that what is at stake in our estimation of street‐level bureaucracy is not so much the purity of the ‘judicial mind’ as the complexity of the ‘democratic soul’ and the ‘connected society’.     

Decoupling trends: Drivers of agency independence in telecommunications: An analysis of high and middle-income countries

Global diffusion of regulatory reforms in telecommunications has prevailed in many countries, engendering major institutional changes and entailing the establishment and/or reform of regulatory agencies. Although the triggers and timing of such agentification processes have been more or less similar, agency independence displays significant cross-country variation. Seeking to explain such variation based on a sample incorporating middle-income countries (MICs), this paper examines the impact of political-institutional settings in which the agencies operate, in addition to the impact of economic parameters. Regression analysis reveals that political rights appear as the central parameter, while their impact is more robust in MICs than in advanced countries. The results underscore considerable cross-national variation in regulatory governance, along with a noteworthy decoupling between MICs and advanced countries. Concurring with the regulatory regionalism perspective, the paper delineates distinct regional clusters, albeit remaining agnostic about the determinants of such clusters.     

The rule of law and citizenship in central India: post-colonial dilemmas

This article argues that the ‘rule of law’ has become a central goal in popular struggles the world over, and it is citizenship struggles which infuse the rule of law with substantive, as against a thin procedural, meaning. This is especially true in post-colonial societies like India, with a tradition of inherited colonial law designed for subject-hood rather than citizenship, growing inequality which affects both the enactment and interpretation of law, and the violation of law by those who are meant to protect it. Demanding implementation of existing laws, breaking laws that are patently unjust whether through armed struggle or non-violent social movements, or seeking to change laws in favour of new and more democratic laws, are all major avenues by means of which people express their aspirations as citizens. However, law's mutually constitutive relation with social practice means that people enter into political and legal negotiations already constituted as certain kinds of legal subjects, which constrains their imagination in certain ways.     

苏联学者对马克思主义法学的两种理解考辨

马克思主义法学思想与中国法治建设的关系,在学术界有否定性意见,问题的产生与源自苏联并影响中国的两种理论解读相关。一个是帕舒卡尼斯囿于“商品交换法学”和未来共产主义社会中法的消亡原理,而否认社会主义法制建设的法律虚无主义;一个是维辛斯基强调法的阶级性而偏于意志论的法律工具主义。前者使社会主义国家趋于人治和以政代法,后者导致对法的过度意识形态化。其实,马克思主义法学的最根本之点在于坚持历史唯物主义立场,强调法律源于人类生产活动,并以其对生产力发展的正负面影响而使社会进步或倒退。马克思主义法学在改革开放的中国一直在场,有必要从意义域角度总结马克思主义法学发展的得失。