From Balance to Conflict: A New Constitution for the EU

As the crisis (and the Union's response to it) further develops, one thing appears clear: the European Union post‐crisis will be a very different animal from the pre‐crisis EU. This article offers an alternative model for the EU's constitutional future. Its objective is to invert the Union's current path‐dependency: changes to the way in which the Union works should serve to question, rather than entrench, its future objectives and trajectory. The paper argues that the post‐crisis EU requires a quite different normative, institutional and juridical framework. Such a framework must focus on reproducing the social and political cleavages that underlie authority on the national level and that allow divisive political choices to be legitimised. This reform project implies reshaping the prerogatives of the European institutions. Rather than seeking to prevent or bracket political conflict, the division of institutional competences and tasks should be rethought in order to allow the EU institutions to internalise within their decision‐making process the conflicts reproduced by social and political cleavages. Finally, a reformed legal order must play an active role as a facilitator and container of conflict over the ends of the integration project.     

参与式治理与根本政治制度的生活化——“一体多元”与国家微观民主的建设

政治制度本质上是一种关于利益和权利义务的关系组合。这种关系组合影响到人们对制度的合作或者冲突。因为观念和利益的多元化,社会成员与制度的冲突引发了高发的群体性事件。因此,解决当前公共治理问题,关键是要考虑体制改进。通过落实宪法所规定的人民代表大会制与民众直接参与式治理的结合,可以提升微观民主建设的质量,保障多元民主,为宏观民主治理提供制度基础。     

Long-Term Strategies in Japanese Environmental Litigation

Japan's reputation for unusually strong emphasis on the avoidance of public conflict and therefore for deemphasis of legal institutions suggests an arid, hostile environment for litigators, especially those who lack substantial resources. In a study of a quasi-class action lawsuit by Japanese air pollution victims, we find that litigation can be developed as a tool in the pursuit of a social movement's wider objectives despite the paucity of resources within the Japanese legal system. Our research documents the many ways in which the delays, obstacles, and costs that characterize the litigation environment in Japan have been either neutralized or turned to the advantage of a social movement because of its commitment to longer-term political objectives rather than short-term victories. The special role of professions in general, and the legal profession in particular, in such litigation combines with class-oriented social movements to produce a political/legal pattern that is neither traditionally harmonious nor a conflict "difficult to contain."     

Of Bodies and Burkinis: Institutional Islamophobia,Islamic Dress,and the Colonial Condition

The 2016 burkini controversy and the criminalization of visibly Muslim women in France is a violent reminder of the precarity of colonial bodies in public space. These laws demonstrate the ongoing management of colonial bodies and communities which speaks over time from historical colonization to present, and future, neocolonial narratives. This article moves beyond the dominant logics of security and gender oppression in the Islamic dress debate which, it is argued, are invoked in a strategic manner to obfuscate the colonial condition and engender a normative, institutional Islamophobia in the public‐political imaginary. It critiques the instrumental use of law in creating political space for such agendas and analyses the whiteness of public space and institutions. The article insists that it is necessary to acknowledge the epistemic lens of the colonial condition in the Islamic dress debate and critically reflects on the alienation and reduced capacity for action of bodies wearing Islamic dress.     

法律移植的理论与实践

近代以来,许多亚洲国家伴随着宗主国或占领国的殖民统治而进行了大量的法律移植;中国从晚清到民国政府,也对西方法律进行了大量的主动移植,使传统法律实现了现代意义的转变。历史表明,规则的稀缺和社会政治经济发展对规则的强烈要求,使得中国的法制建设必然首先是改变“无法可依”的状态。在需要通过立法创造某些制度以实现政策目标时,法律移植是最有效的手段,成为创造法律秩序和促进社会进步的方式。然而,移植规则的深层含义在于移植文化,也即规则和制度的移植必须要有文化的支持,否则,法律移植很可能仅仅是立法者的游戏。     

Reconfiguring the Politics–Law Relationship in the Integration Project through Conflicts–Law Constitutionalism

This paper argues that the relationship between law and politics must be reconfigured within the European Union. Dissecting recent crises in economic, social and political organisation within Europe with reference to the three ‘fictitious’ commodities of Karl Polanyi, we find that law in Europe has contributed to de‐legalisation, de‐socialisation and disenfranchisement. Moving on to review the potential for law to respond to crisis through new paradigms of conflict resolution as suggested by Ralf Dahrendorf, we find that the steering capacity of law is nevertheless limited if it fails to establish a sustaining relationship with politics. Our conclusions are modest: conflict–law constitutionalism cannot solve Europe's many crises. However, it does represent a new paradigm of law within which relations between European law and European politics might be re‐established—a vital step to overcoming crisis.     

Hazardous waste,distributional conflict,and a trilogy of failures

Environmentally dangerous but profitable hazardous waste disposal is an instance of market failure. Tort law has failed as a social mechanism to sanction powerful corporations for such crimes against the environment. The federal Superfund hazardous waste cleanup program, a regulatory system created to fill this void, is also marked by failure. This article makes the case that the inability to resolve Superfund-engendered distributional conflicts has precluded the efficient and equitable outcomes that characterize a socially beneficial market, tort, or regulatory response. A political economy of regulation that links conflict, conflict resolution, and Superfund failure is examined.     

Prospects and Limits of Democratic Governance in the EU

The EU Treaty contains for the first time a title on democratic principles. These provisions emphasise the importance of national parliaments and the EU parliament for the democratic legitimacy of the EU. The new chapter on democratic principles does not address the central challenge of the EU polity to the traditional understanding of democratic legitimacy, the disjunction of political and economic governance as expressed by the important role of independent institutions like the Commission, the European Central Bank and agencies in EU governance . This is a consequence of the fact that the status of independent regulatory institutions in a democratic polity has not been clarified—neither in the EU nor in the Member States. However, such independent institutions exist in diverse forms in several Member States and could hence be understood as a principle of democratic governance common to the Member States. Such an understanding has not yet evolved. The central theoretical problem is that regulatory theories which explain the legitimacy of independent institutions as an alternative to traditional representation remain outside the methodology of traditional democratic theory. Economic constitutional theory, based on social contract theory and widely neglected in the legal constitutional debate, offers a methodological approach to understanding independent regulatory institutions as part of representative democratic governance.     

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。     

Of citizens and plebeians: Postnational political figures in Jürgen Habermas and Jacques Rancière

This paper focuses on Habermas's notion of cosmopolitan democracy. Reconfiguring the basic ideas of democracy in postnational terms is inevitable if social and political integration is to succeed on a supranational level. In exploring Habermas's ideas, we draw on Rancière, whose thought stands in a complex relationship to Habermas. On the one hand, Rancière largely shares Habermas's diagnosis of the present. Both bemoan the erosion of the political caused by post‐democracy and censure the rise of right‐wing extremism in Western societies. On the other hand, and in contrast to Habermas, Rancière holds that these problems should be addressed not primarily by strengthening political institutions and reaching a consensus between conflicting parties, but by rethinking conflict and resistance. We show that Habermas's and Rancière's propositions can be productively brought in dialogue by focusing on the paradigmatic types of political subjectivity involved in their accounts: the citizen (Habermas) and the plebeian (Rancière).     

Primetime Dispute Resolution: Reality TV Mediation Shows in China's “Harmonious Society”

Through a case study of reality TV mediation shows, this article joins the debate about the recent promotion of formal and informal mediation by the Chinese government, what some scholars have called a “turn against law” (Minzner 2011). We identify three converging reasons for the sudden popularity of mediation shows on Chinese primetime television: (1) the desire of TV producers to commercially exploit interpersonal conflicts without fanning the flames of social instability; (2) the demands of official censors for TV programming promoting a “harmonious society”; and (3) the requirement for courts and other government institutions to publicly demonstrate their support for mediation as the most “appropriate” method for resolving interpersonal and neighborhood disputes. Cases drawn from two top‐rated mediation shows demonstrate how they privilege morality and “human feeling” (ganqing) over narrow application of the law. Such shows could be viewed merely as a form of propaganda, what Nader has called a “harmony ideology”—an attempt by the government to suppress the legitimate expression of social conflict. Yet while recognizing that further political, social, and legal reforms are necessary to address the root causes of social conflict in China, we conclude that TV mediation shows can help to educate viewers about the benefits and drawbacks of mediation for resolving certain narrow kinds of domestic and neighborhood disputes.     

Diagnosis and the dole: the function of illness in American distributive politics

This article argues that the concept of illness has certain properties that make it a convenient administrative device for managing a need-based redistributive system in a society whose primary distributive system is based on work. These properties--cultural acceptance of illness as a legitimate excuse for not working, objective standards for identifying illness, and restrictiveness--have led to the widespread use of illness as an eligibility criterion for many social benefits, including cash transfers, services, privileges and exemptions. Paradoxically, the traditional rationales for using illness as one of the keystones of categorical welfare policy are eroding, yet welfare programs based on illness certification are growing rapidly. To explain this anomaly, the author suggests that medical certification as a distributive mechanisms serves certain latent political functions, such as allowing welfare programs to be responsive to political unrest, siphoning off opposition to controversial policies by the granting of medical exemptions to intense opponents, are reducing political conflict by using physicians as arbiters.     

Institutional and Political Sources of Legislative Change: Explaining How Private Organizations Influence the Form and Content of Consumer Protection Legislation

This article explores how private organizations influence the content and meaning of consumer protection legislation. I examine why California forced consumers to use a private dispute resolution system that affords consumers fewer rights, while Vermont adopted a state‐run disputing structure that affords consumers greater rights. Drawing from historical and new institutional theories, I analyze twenty‐five years of legislative history, as well as interviews with drafters of the California and Vermont laws, to show how automobile manufacturers weakened the impact of a powerful California consumer warranty law by creating dispute resolution venues. As these structures became institutionalized in the lemon law field, manufacturers reshaped the meaning of legislation. Unlike California, the political alliances in Vermont and a different developmental path led to a state‐run dispute resolution structure. I conclude that how social reform laws are designed and how businesses influence social reform legislation can increase or decrease the achievement of a statute's social reform goals.     

Shifting Frames,Vanishing Resources,and Dangerous Political Opportunities: Legal Mobilization among Displaced Women in Colombia

How can we make sense of the use of legal claims and tactics under conditions of internal displacement and armed conflict? This article argues that in violent contexts mobilization frames are unstable and constantly shifting, resources tend to vanish, and political opportunities often imply considerable physical danger. It is grounded on a three‐year, multimethod study that followed internally displaced women's organizations as they demanded government assistance and protection in Colombia. Through detailed examples of specific cases, this article illustrates the constraints of legal mobilization in violent contexts, as well as different social movement strategies of resistance. It, thus, contributes to decentering theories of social movement uses of law that tend to be based on the legal cultures and institutions of industrialized liberal democracies, rather than on those of the Global South, and hence, tend to exclude violence.     

An Exploratory Study on the Relationship Between Justice and Social Conflict and the Mediating Role of Trust and Communication

This study aimed to analyze the effect of Korean people’s awareness of justice on the level of social conflict and the roles of trust and communication as mediating factors. Using the survey data obtained from 8000 Korean people in 2016, the study’s main findings are the following. First, the average values of justice and social conflict reveal that the respondents thought that Korean society is not fair and that social conflict is a serious issue. Second, the awareness of justice had a positive effect on the factors of trust and communication. This indicates that people who perceived society as fair were also more likely to perceive higher levels of trust and communication. Third, justice was the most influential factor on the level of social conflict, followed by trust in social institutions. Fourth, people’s age, education, and income levels also showed differences in the level of perception of social conflict. Finally, trust in social institutions was a mediating factor in the relationship between justice and social conflict and thus reduced the seriousness of social conflict.

     

Potential of Inmate Self-Government

Inmate self-government is one of the strategies for moving correctional institutions away from the crime control establishment model and toward the community subsystem model Authentic participation in government of these institutions, however, awaits resolution of basic questions. With the prison organization provide the prerequisite conditions?. Will the inmates be prepared for effective participation. since the suicide processes of criminal justice administration heavily from those segments of the American population king expunge and incentives for significant political participation? Penal dorm depends on sociocultural changes in the society of which formations is a creature. Whether or not inmate self-government is o via reform strategy pivots ultimately on the revision of social attitudes toward deviants generally and the capacity of the prison to reduce significantly its social psychological isolation from the larger community system.     

晚近国际投资争端解决实践之评判:“全球治理”理论的引入

晚近国际投资争端的性质已由以往的政治性争端转变为现行的管理性争端,相应地,国际投资争端的传统外交保护解决方式也已为国际仲裁方式所取代,而且国际投资争端仲裁实践出现了明显的偏袒外国投资者,损害东道国权益之倾向。就此,已难以用传统的南北矛盾理论框定,而现有的商事仲裁理论和国内公法理论则存在着不同程度的缺失,需要引入一种视野更为宽广的全球治理理论予以弥补。     

Beatings,Beacons, and Big Men: Police Disempowerment and Delegitimation in India

It is a truism that police in India generally lack legitimate authority and public trust. This lack is widely understood by scholars, policy analysts, and police practitioners as being rooted in the institution's colonial development as a means of oppression, and its alleged corruption and criminalization in the postcolonial period. The social facts of situational hyper‐empowerment and the widespread decadence of police do much to explain their poor image and performance, but these explanations do not account for the fact that police in India are also structurally disempowered by cultural‐political and legal‐institutional claims to multiple and conflicting forms of authority that challenge and often overwhelm the authority of police. This structural disempowerment and its performances in everyday interactions between the police and the public constitute an ongoing social process of delegitimation of police authority in contemporary India. Following ethnographic analysis of this process of delegitimation, I explore the implications of focusing on police disempowerment for theorizations of the sources and capabilities of state legal authority more generally.     

Social Justice and the Human–Environment Relationship: Common Systemic, Ideological, and Psychological Roots and Processes

Historical analyses and contemporary social psychological research demonstrate that prevailing systems, institutions, and practices espouse an ideology of conflict between humans and the natural world. The established paradigm of society espouses domination of and separation from the natural environment, and manifests in environmentally detrimental attitudes and practices. Ecological exploitation appears to stem from the same root socioeconomic processes as social injustice—the hierarchical arrangement of power which places some groups and the environment in a position devoid of power or rights. Accordingly, endorsement of social and environmental injustice is exacerbated by tendencies toward domination and hierarchy, such as social dominance orientation and right-wing authoritarianism. Moreover, injustice is perpetuated by motivation to uphold and justify social structures and the dominant paradigm, which stifles societal change toward intergroup fairness and equality and motivates denial and neglect in the face of environmental problems. Ideological tendencies in service of the system, including political conservatism, belief in a just world, and free market ideology, contribute toward perpetuating injustice as well as anti-environmental sentiment and behavior. Considering the shared psychological and ideological underpinnings of social and environmental injustice point to important interventions, such as cultivating interdependence through contact, fostering inclusive representations, and harnessing ideological motives toward overcoming resistance to change, and carry implications for expanding the scope of justice theory, research, and practice.     

INSTITUTIONAL INEFFECTIVENESS,ILLEGITIMACY, AND PUBLIC SUPPORT FOR VIGILANTISM IN LATIN AMERICA

Why do individuals or groups support vigilantism as a means of conflict resolution? Most researchers tend to agree that support for and participation in vigilantism occurs in “stateless locations,” that is, when formal justice institutions are weak or absent. Despite this general consensus, quantitative evidence of this relationship is limited to a handful of country‐specific studies that used only subjective survey‐based measures of institutional weakness. This study seeks to extend research on vigilantism by assessing the relationship between subjective and objective conditions of formal justice institutions and public support for vigilantism across 323 provinces in 18 Latin American countries by using the 2012 AmericasBarometer Survey. Specifically, this study uses multilevel logistic regression techniques to examine the variability of public support for lethal vigilantism within and across Latin American countries. When controlling for a wide range of potential confounds, the results show that the most robust predictors of support for violent vigilantism are subjective indicators of institutional illegitimacy, personal victimization, and punitive attitudes. Evidence also exists that objective insecurity, as measured by province‐level homicide rates, fosters public support for violent vigilantism in certain situations.