论宪法学研究中的历史分析方法

历史分析方法在宪法学的方法论体系中正日益被边缘化.与理论上的这一发展方向不同,历史分析方法在宪法学的主流知识体系中却是一种正在被过度使用的方法.全面反思历史分析方法在宪法学中的运用,对于宪法学的实践与规范转向具有重要的理论意义.历史分析方法在宪法学的运用中主要有四种面相,即语源学的面相、制度史学的面相、观念史学的面相以及解释学的面相,人们对不同研究领域的历史资料的取舍不同,对宪法学保持独立的学科地位的意义也不同.历史分析方法在运用中存在许多缺陷,不仅在一定程度上阻碍了人们对其他研究方法的运用,也在客观上造成了对制度合理性的论证过分地依赖于历史合理性,从而减低了人们对于制度的内在逻辑和价值目标的关注以及忽视制度建构中的人的理性创造力.历史分析方法仍然具有其独特的价值,不仅可以帮助人们在宪法学研究中更好地引入社会分析方法,而且对于合理界定宪法学的研究重心以及为宪法解释提供资料与素材方面,具有不可替代的作用.     

制定《商事通则》论纲--以总体思路、体系结构为研究内容

制定《商事通则》的总体思路是 :《商事通则》只应调整那些传统民法难以或不便调整的以营利为目的的社会关系 ;应以企业作为主要规范对象 ;只应将总纲性的法律规范 ,以及不宜以商事单行法的形式规范或以商事单行形式规范成本过高的内容包含进去 ;其法律属性应为具有较多公法规范的私法。《商事通则》的体系结构应根据我国现实的理论、立法和实践确定 ,应在《商事通则》的篇首置“基本原则”章。     

阶级民主和程序民主——考茨基和列宁政制之争再思考

1918年考茨基和列宁关于民主问题的争论,对后来社会主义的发展,无论在观念上,还是历史上,都产生了极其重要的影响。考茨基认为,列宁和布尔什维克背叛民主,而列宁则认为考茨基歪曲民主的实质。在考茨基和列宁争论的背后,隐含着一个极其重要的问题,即社会主义民主是阶级民主和程序民主的有机统一。认识这一点,对于社会主义民主思想史的研究和当代中国民主政治的发展具有重要的价值。     

Sources and Transitions of Chinese Foreign Policy: An Introduction

Chinese foreign policy has multiple sources, and the incentives that are driving its behaviour have grown from the domestic/international, as well as from regional, economic, normative, multilateral, and cultural levels. Foreign policy-making in China is becoming increasingly complex and sophisticated. This special issue is drawn from some edited papers presented in the joint workshop between Fudan and Durham Universities on Chinese foreign policy on 29–30 March 2010. By assessing the economic, domestic, regional, global and cultural sources of Chinese foreign policy, we aim to illustrate the various sources and to locate possible ways to consolidate the transitional process, and to spur future endeavour facing China’s foreign policy.     

Current strategic approaches for the detection of blood doping practices

Aerobic sport performance may be strongly influenced by the number of red blood cells available for transport and delivery of oxygen from lungs to muscles. Often, athletes search for an acute increase in red blood cells by means of blood transfusions. This paper reviews the possibilities for detecting such prohibited practice. Flow cytometry methods are able to detect a double population of red blood cell membrane surface antigens, thus revealing an allogeneic transfusion. Other ingenious approaches for total hemoglobin mass measurements or to test for the metabolites of blood bag plasticizers in urine are new trends for facing the detection of autologous transfusions. Steady increase of red blood cell number may be obtained also by erythropoietic stimulant agents such as erythropoietin, analogs and mimetics. The challenge of detecting those substances has stimulated the development of indirect markers of altered erythropoiesis, leading to the consequent development of the hematological blood passport approach, which is gaining legal acceptance.     

An evaluation of non-metric cranial traits used to estimate ancestry in a South African sample

Establishing ancestry from a skeleton for forensic purposes has been shown to be difficult. The purpose of this paper is to address the application of thirteen non-metric traits to estimate ancestry in three South African groups, namely White, Black and "Coloured". In doing so, the frequency distribution of thirteen non-metric traits among South Africans are presented; the relationship of these non-metric traits with ancestry, sex, age at death are evaluated; and Kappa statistics are utilized to assess the inter and intra-rater reliability. Crania of 520 known individuals were obtained from four skeletal samples in South Africa: the Pretoria Bone Collection, the Raymond A. Dart Collection, the Kirsten Collection and the Student Bone Collection from the University of the Free State. Average age at death was 51, with an age range between 18 and 90. Thirteen commonly used non-metric traits from the face and jaw were scored; definition and illustrations were taken from Hefner, Bass and Hauser and De Stephano. Frequency distributions, ordinal regression and Cohen's Kappa statistics were performed as a means to assess population variation and repeatability. Frequency distributions were highly variable among South Africans. Twelve of the 13 variables had a statistically significant relationship with ancestry. Sex significantly affected only one variable, inter-orbital breadth, and age at death affected two (anterior nasal spine and alveolar prognathism). The interaction of ancestry and sex independently affected three variables (nasal bone contour, nasal breadth, and interorbital breadth). Seven traits had moderate to excellent repeatability, while poor scoring consistency was noted for six variables. Difficulties in repeating several of the trait scores may require either a need for refinement of the definitions, or these character states may not adequately describe the observable morphology in the population. The application of the traditional experience-based approach for estimating ancestry in forensic case work is problematic.     

未成年人社区矫正的理论与构想

对未成年罪犯进行社区矫正不仅有利于保障未成年人人权、实现未成年罪犯再社会化,也有利于与国际少年司法制度接轨,因此建立和完善社区矫正制度有着现实的必要性。社区矫正工作虽然在我国尚处于起步阶段,但随着社区的不断发展与成熟、社区居民素质的普遍提高以及社区矫正试点工作取得的成效,为社区矫正制度的发展提供了相应的条件。我国社区矫正制度既需要制定专门性法律也需要完善相应的司法制度。     

我国职务犯罪侦查机制的反思与重构

随着改革的不断深入,我国职务犯罪越来越严重,作案手段智能化程度越来越高,反侦查能力越来越强,而随着新《律师法》的实施和司法改革进程的加快,职务犯罪侦查受到的挚肘越来越大,传统的侦查机制越来越落后,侦查工作越来越艰难。面对日益严峻的形势,我们应针对当前侦查机制存在的弊端,创新管理体制,建立大侦查格局,优化侦查权限,完善配套制度,转变侦查模式。     

In Search of Respect: Examining Arrestee Satisfaction with Police

Recent research suggests that attitudes toward police hinge upon the procedures officers use in their interactions with the public. Using survey data collected from a sample of adults arrested and booked into a local jail in Washington County, Arkansas, this paper examines some of the factors that influence arrestees’ satisfaction with police. Results reveal that the most important factor influencing arrestees’ opinions of police was their belief in the benevolence of police actions, followed by their perceptions of the effectiveness of police, whether or not their arresting officer treated them with respect, racial group membership, and total household income. These findings lend support to the “normative” or “process-based” model of policing. The authors discuss the implications of these findings for police and jail administrators.     

Elasticity in evaluations of criminal evidence: Exploring the role of cognitive dissonance

Purpose. Previous experiments have demonstrated asymmetrical scepticism in investigators' judgments of criminal evidence – evidence inconsistent (vs. consistent) with the dominant hypothesis about a case is judged as less reliable. In addition, some types of evidence (e.g., witness testimony) are more susceptible to asymmetrical scepticism than others (e.g., DNA evidence), indicating varying degrees of elasticity. This article proposes that inconsistent evidence arouses cognitive dissonance, and that the dissonance can be reduced through either asymmetrical scepticism (for high‐elasticity evidence) or belief change (for low‐elasticity evidence). The hypotheses are tested in two experiments. Methods. In both experiments, law students made a preliminary judgment about the guilt of a suspect in a homicide case, and subsequently received a piece of DNA or witness evidence which was either consistent or inconsistent with the preliminary judgment. The extent to which participants changed their guilt judgments, judged the additional evidence as reliable, and felt dissonance served as the main dependent variables. Results. Inconsistent (vs. consistent) evidence did arouse stronger dissonance, but only for witness (and not DNA) evidence. Experienced dissonance (Experiment 1) and dissonance reduction (Experiment 2) accounted for the effect of the evidence on changes in guilt judgments, but not for the effect on reliability judgments. The greatest dissonance reduction was observed among participants who received inconsistent witness evidence but did not change their guilt judgments accordingly. Conclusions. It appears that dissonance plays a significant, although complex, role in investigative judgments of guilt and reliability. Alternative dissonance‐reducing mechanisms that can account for the findings and practical implications are discussed.