同性婚姻问题与美国政治

随着美国同性恋权利运动的发展,美国社会对同性恋的接受程度不断提高,但在同性婚姻问题上仍陷入分裂状态。美国有关同性婚姻的争议主要是围绕同性恋者是否拥有结婚权,以及同性婚姻是否享有与异性婚姻同等的法律权利和经济、社会福利而展开的,这一争议实质上反映了两种不同的文化和道德价值观及传统的婚姻观与平等权之间的冲突。与其他道德价值观问题一样,在同性婚姻问题上,不同党派、意识形态、种族族裔、宗教信仰、性别、年龄、地区的美国人的态度有明显的差别。对于美国政治而言,同性婚姻问题已经成为区分民主、共和两党的标志性问题,也是近几次总统选举中的重要议题之一和选举战略的一个"楔子议题"。     

Thomas Paine's influence on the Girondin constitutional project of 1793

This article aims to investigate what may have been Thomas Paine's influence on the Girondin constitutional project presented by Marie-Jean-Antoine-Nicolas de Caritat Condorcet to the French National Convention, of which he was a member, on 14 and 15 February 1793. Indeed, the English radical was part of the nine-member committee, by the majority Girondin faction, in charge of drafting a new constitution for France. That project, which was accompanied by a Declaration of Rights, never came to fruition, but it has always been recognized as an important document for the interpretation of the evolutionary dynamics that characterized the French revolutionary period. Many of the provisions in the constitution recall Painite political thought, and studying this element can also be useful for understanding the links between the American and French Revolutions, given the fact that Paine actively participated in the experience of institutional upheaval initiated by the American colonists in 1775. The English thinker elaborated a political theory in his writings inspired by the most important democratic principles and based on respect and protection of fundamental human rights, all elements that, in their different mode of expression and declinations, can be found again in the Girondin constitutional charter of 1793.     

美国联邦最高法院裁决中的自然法解释

虽然美国国内对于大法官在最高法院的司法审查中用自然法和自然权利学说来释宪是否恰当长期存在着争议,但是在美国最高法院的宪法解释和裁决中,自然法作为一种解释方法和论据从未消失过。立国初期,在塑造联邦国家与维护财产权方面,最高法院大量使用了自然法解释;随着19世纪末20世纪初期实体性正当程序的兴起,最高法院利用自然法捍卫自由放任主义和契约自由;20世纪后半叶,随着权利革命的来临及人们对捍卫个人自主性的诉求日益增强,最高法院大法官在涉及个人生活方式的案件中不得不再次使用自然法解释。     

How to avoid a coup d'état: The Federalist on the American constitution

SUMMARY

In this article Jack Pole considers whether the Constitution of the United States, as drafted in the Philadelphia Convention of 1787 could be regarded as the result of a coup d'état, since the original remit of the Convention had been to modify the existing Confederation of independent states, while the outcome was a constitution for a new sovereign, federal state. The article is based on the use of the collection of essays that were later published collectively as The Federalist to illustrate the thinking of the Convention leaders. It is important that The Federalist was not a work of political theory, but a collection of the ideas of Hamilton, Madison and Jay, which were written in response to developments with the aim of persuading the public to vote for ratification. The central problem for the authors was to balance their wish for a strong central government against the widespread contemporary belief, rooted in Whig thinking, that a strong central government was the most dangerous of all threats to individual liberties. The authors, collectively ‘Publicus’, begin with an orthodox view of sovereignty as ‘indivisible’: but this view was modified in face of strong Anti-Federalist attacks on ‘consolidation’. Key issues were open to later judicial interpretations. The article suggests that, quite apart from the complete absence of armed coercion on the Convention of 1787, the results of its deliberation cannot be seen as the result of any kind of coup.     

理解南海共同开发与航行自由问题的新思路——基于国际法视角看南海争端的解决路径

南海共同开发与航行自由问题的明确与解决,直接关系到中国的海洋权益以及南海的未来法律秩序。尽管泰国湾地区的共同开发经验能够为中国提供借鉴,但南海主海的情况与之有很大区别。共同开发方式在国际范围内接受程度不广泛,实际效果不理想,其对南海争端的可适用程度较低。因此,应对共同开发方式在南海争端解决中的作用予以重新定位。从长远的角度出发,共同开发不能成为解决南海争端的优先选择和主要方式,即便在短期内以共同开发方式为处理南海争端的权宜之计,也应当注重构建一个合理的共同开发机制。中国对南海的"历史性权利"并未被后来的有效国际法律规范所更改或取消,这一权利不能按照《联合国海洋法公约》的架构来解读,也并不存在妨碍南海航行自由的问题。相反,倒是其他南海周边国家滥用《联合国海洋法公约》规定所提出的意在分割、控制南海的种种主张更加妨碍南海的航行自由。比较之下,中国的主张更加符合南海水域本身的性质及其适用当代海洋法之后的应然状态。     

Neither inside nor outside the corridors of power: prosaic petitioning and the royal burghs in early modern Scotland

ABSTRACT

This article explores early modern petitioning in the context of urban Scotland. It focuses on prosaic rather than political petitioning, on the basis that the former was more truly characteristic of what the purpose of petitioning was understood to be by most of those who engaged in it. The burghs of Scotland provide an added dimension to the history of petitioning because of the role of their national assembly (the Convention of Royal Burghs), which was simultaneously a recipient of petitions, a conduit for its members’ petitions to the crown, and a petitioner of the crown in its own right. This article also reveals how changing practices of petitioning shed light on the development of the early modern Scottish state, as the Convention of Royal Burghs found its members increasingly bypassing it and instead they resorted directly to central government institutions.     

欧洲的国家豁免立法与实践——兼及对中国相关立场与实践的反思

近代国际法的发展以欧洲大陆为中心展开,最早有关国家豁免的实践来自欧洲,国家豁免的两大理论发展———绝对豁免论和限制豁免论也先后起源于欧洲。二战后至今,尽管英国、法国、德国为代表的欧洲国家有关国家豁免的立法和实践尚未统一,但《欧洲国家豁免公约》、《联合国国家及其财产管辖公约》以及欧洲人权法院的实践为各成员国规则和实践的统一提供了规则基础和方法论。欧洲大陆正在形成一种区域性的国家豁免政策。中国作为参与世界经济交往的重要国家,不能脱离于上述理论与实践发展之外。绝对坚持绝对豁免论不利于中国国家利益和国家财产的保护,可在理论上适当采纳限制豁免论,实践中发展国家豁免例外的规则。     

气候正义的僵局与出路——基于法哲学与经济学的跨学科考察

气候正义涉及复杂的国际法与国内法问题。传统国际法强调主权独立和互不干涉,而应对气候变化必然要求国际社会合作减排。国际合作减排的前提是各国主动放弃部分排放权利,主动承担减排义务。气候变化对整个国际社会造成了极大的危害,由于各国所处地理位置不同,各国所受的负面冲击不尽一致。有些国家必须支出巨额的调整成本以适应变化了的全球气候,而有些国家反而会因气候变化获得短期利益。根据科斯定律初始权利分配原理,气候正义不是简单的排放权的界定与转让问题,它要求运用分配正义与矫正正义原则对不公平分担减排责任的现象进行平衡处理。中国固然应当积极参与国际合作减排,但同时要坚持发展权优先的观点,与工业发达国家展开有理有节的谈判与斗争,争取最大限度地实现矫正正义。     

Calidad democrática en América Latina: ¿proyecto o utopía?

While recognizing the heuristic limits of the concept “democratic quality” this article argues that measuring democracy over time is the most adequate way to identify, discuss and analyze its presence in every country. “Democratic quality” sheds new light on both concept elaboration and empirical studies because it synthetizes two political processes that have developed in the region in the last twenty five years: democratic transition and democratic consolidation. This category allows us to define the current state of Latin American countries in terms of their institutional and societal development of democratic life. We can thus, at least in theory, observe and propose an integrated improvement of existing political regimes in a context in which modern representative democracies are reorganized in terms of their new attributes and rights. Based on these premises, this article proposes two interrelated paths of analysis: a) considering the model of “democratic quality” to analyze Latin American democracies and characterize their present problems; and b) examining the relevance of this model’s heuristic power. The main thesis holds that not even the most visible long or short-term transformations undergone by our democratic political legal codes, since its inception, are sufficient in and of themselves to bring us closer to the democratic quality model, or in other words, to the basis of a democratic State of law.     

Between the Dock and a Hard Place: Hazards and Opportunities of Legal Pluralism for Indigenous Women in Ecuador

This article examines the challenges and opportunities of indigenous justice for women in Ecuador. The legal recognition of indigenous justice is a major component of democratization in the region. Yet it also raises the risk of institutionalizing detrimental gender biases within indigenous forms of law. Taking the Remache case as a point of departure, this article identifies some of the fault lines in legal pluralism and women's conflicted relationship with it. Rather than rejecting customary law, however, women advocate for their rights within it—lobbying for gender parity within indigenous justice in the 2008 Constitutional Assembly. As women's support for indigenous justice relocates legal authority, it also challenges conventional practices of state sovereignty. To understand the attractiveness of legal pluralism for women and its impact on the state, this study explores the confines of feminist alliances, the accessibility of indigenous justice, and its implications for state sovereignty.     

《日本文化基本法》的考察及其对中国的启示

日本立法实践表明,文化基本法重点发挥的是文化人权法与文化政策法的功能,厚植文化国力的根本在于全面提高＂人＂的文化艺术修养。中国文化政策存在稳定性不足、文化人权相对忽视及文化政绩化、功利化现象,亟待尽快制定文化基本法,就文化发展的基本理念、不同主体的权责义务及各项文化政策作出规定,以实现文化重要性教育,明确文化政策方向及保障文化人权,保证文化大发展大繁荣成为＂有源之水＂与＂有本之木＂。     

‘The devil or the Dutch’: Holland's impact on the financial revolution in England, 1643–1694

SUMMARY

In this article Beat Kümin and Andreas Würgler make a comparative study of how the peoples in early modern England and Hesse used their acknowledged rights to present petitions and grievances to exercise a real influence on the process of legislation, and even over administration in general. They could on occasion, virtually initiate legislation from below. The article illustrates the unusually wide scope and usage of the petition in England, helped by the early recognition of the subjects' right to petition both houses of Parliament as well as the monarch. It is suggested that this could result in a broad popular participation in the work of government. But even in Hesse, where the rulers asserted their sovereign rights as sole legislators and where, from the seventeenth century, they were attempting to develop an effective bureaucratic administration to sustain their aspirations, the method of petitioning the ruler, either through the Estates, Gravamina or directly, enabled ordinary people to have a part in promoting legislation and to participate in, and even effectively restrain, the princely administration.     

Participatory constitution-making and why it matters: A review of the Egyptian experience

This article considers the making of Egypt's post-Mubarak constitution after considering the fact that participatory constitution-making is accepted as a democratic norm allowing citizens to be involved in the creation of their constitution and their future. The author argues that the process by which a constitution is made is crucial for the framing and legitimising of that constitution. Therefore, political elites and state institutions should not wholly control the process. The views of two schools of thought – idealism and realism – are considered. These views, together with the influence of the state and the concept of participation of the citizenry in the constitution-making process, are measured against international law requirements and further applied in a critical evaluation of Egypt's constitution-making process from 2011 to 2014.     

Oakeshott, Freedom and Republicanism

It is contended that Michael Oakeshott resists classification in terms of conventional labels of conservative, liberal, right or left, and that it is difficult to incorporate him in discussions of modern liberal theory because his concerns are not with human rights, distributive justice or multiculturalism. It is with reference to the classical republicanism of Rome that Oakeshott's distinctive contribution to political philosophy is illuminated because of his emphasis upon authority, the rule of law and freedom as non-domination. These are the very features that Oakeshott highlights in his lectures on the 'Political Experience' and 'Political Thought' of the Romans. Oakeshott values the distinction that the Romans, but not the Greeks, made between public and private, but unlike later republicans he does not associate the public sphere exclusively with political participation and civic virtues. One may contribute just as significantly to the public concern by being a music-hall entertainer. Oakeshott is clearly differentiated from modern instrumental republicans who in his view would be rationalists obsessed with institutional design and with viewing the civil condition as an enterprise association.     

Compulsory Voting and Income Inequality: Evidence for Lijphart's Proposition from Venezuela

What difference does it make if the state makes people vote? The question is central to normative debates about the rights and duties of citizens in a democracy, and to contemporary policy debates in a number of Latin American countries over what actions states should take to encourage electoral participation. Focusing on a rare case of abolishing compulsory voting in Venezuela, this article shows that not forcing people to vote yielded a more unequal distribution of income. The evidence supports Arend Lijphart's claim, advanced in his 1996 presidential address to the American Political Science Association, that compulsory voting can offset class bias in turnout and, in turn, contribute to the equality of influence.     

The domestic application of international human rights conventions in Saudi Arabia and the need to ratify conventions on migrant workers

This article examines the application of international human rights conventions in Saudi legislation where Sharia is the main source of law. Saudi laws often adopt the dualistic approach and its international human rights obligations must be in agreement with the Sharia. This paper further intends to explore the Kingdom of Saudi Arabia's (KSA) position on reservations and ratifications of international human rights conventions generally and in the context of migrant workers’ rights particularly. Since the KSA has not ratified any convention related to migrant worker protection, it is essential to examine the role of national human rights organisations in implementing and promoting human rights in the KSA and the article explores the significant efforts made by these organisations to implement and protect the rights of migrant workers in the country. It argues that the KSA has ratified a number of human rights conventions such as the International Convention on the Elimination of All Forms of Racial Discrimination; however, it has failed to comply with its provisions. It is suggested that non-discrimination provisions of some of these conventions may be used to advance migrants’ rights in the country.     

Studies presented to the international commission for the history of representative and parliamentary institutions 1937–1980

Summary

This article examines the problems faced by the Portuguese Cortes between 1821 and 1823 in attempting to create a constitution. This involved the central issue of whether or not sovereignty resided in the nation or in the person of the king. It led to a polarisation between traditionalists and liberals, although the latter believed that co‐operation between king and Cortes was a precondition for political and social stability. There were also disagreements about whether a royal veto over legislation should be conceded and whether or not a second chamber should be created. A compromise was found over the former, with the Crown receiving a suspensive veto, while a second chamber was rejected. Nevertheless, Portuguese liberals remained divided over the exact role of the Crown within the new constitutional order and that division, combined with the continued strength of traditional forces and external pressures, opened the way for a counterrevolution. Faced with intransigence on the part of the king and the traditionalists, the liberals could only protest by suspending the Cortes. João VI's reply was the declaration of Vila Franca (1823) which proclaimed royal sovereignty and replaced the Constitution of 1822 with one which was only a ‘gift’ from the Crown.     

THE MODERN CREATION OF CHINA’S ‘HISTORIC RIGHTS’ CLAIM IN THE SOUTH CHINA SEA

The overlapping territorial and maritime claims in the South China Sea threaten to spark conflict in East Asia. On several occasions in recent years, disputes over the right to extract oil and gas have caused clashes between Chinese and Southeast Asian vessels. The United Nations Convention on the Law of the Sea (UNCLOS) was agreed by almost all countries in 1982 to try to resolve such disagreements. However, the People's Republic of China is currently trying to claim rights that go beyond UNCLOS and infringe on the UNCLOS-based rights of the other claimants. It deploys two arguments in particular: that the archipelagos in the South China Sea collectively generate rights to maritime resources and that China enjoys ‘historic rights’ in the sea. Neither of these arguments is found within UNCLOS, however. This article explores the origin of these Chinese arguments and finds that the ‘historic rights’ claim can be traced to a single Taiwanese academic writing in the 1990s during a period of intense debate in Taiwan over its relationship with the PRC.     

俄罗斯修宪与普京长久国家

普京对1993年《俄罗斯联邦宪法》进行修改,俄罗斯将从叶利钦宪法过渡到普京宪法。1993年宪法是一部以超级总统制为特征的基本法,它保证了俄罗斯主权国家的建立和社会政治的稳定。但是这部宪法赋予总统的权力异常大,限制了其他权力机构和地方对决策的影响。修宪的目的是使权力机构更加平衡,运行更加有效。普京认为,修宪过程中必须遵守几个基本原则:俄罗斯只能是总统制共和国,不能搞议会制;俄罗斯不能出现双重权力,不能出现寡头政治;俄罗斯宪法高于国际法律和条约;重视劳动者、母婴、养老金领取者的社会保障。修宪能否实现俄罗斯政治进程从以保证社会政治稳定为主过渡到以发展为中心,是2024年以后俄国家领导人面临的主要任务。普京表示,如果人民有希望,宪法法院有裁决,不排除2024年继续竞选总统。     

Rights,Duties and Aboriginal People

In this paper I reconsider debates in the Australian colonies in the 1830s and 1840s about Aboriginal people and rights in land. I contend that Aboriginal rights of property in land were seldom the matter at stake in these debates. Further, I argue that a notion of duties rather than rights was invoked by Christian humanitarians as they pleaded that Aboriginal people should be provided with protection as well as compensation for the loss of their lands. I suggest that the position that they adopted was determined not so much by the moral, political or legal principles they sought to uphold but by their acknowledgement of material forces at work in the colonies. I also point out that the debate that occurred about rights in land was an intra-British one that concerned the rights of settlers vis-à-vis the Crown. Finally, I suggest that the principal ways in which pastoral leaseholders tried to legitimise their claims to land were rather different to that suggested by historians in recent decades.