任何民族无信仰即无宪政也无法治——民族信仰与中国百年宪政关系的文化考察

中国人民追求宪政并且为之奋斗一百余年但社会效果仍不理想的根本原因在于一百年多来中国人没有形成较为稳定的、长期的、统一的精神信仰。信仰也是一种规则体系、价值体系,可以补充、完善法律的规范作用。一个民族只有解决了信仰问题,才有可能走向宪政或法治。     

宪法解释方法的两种传统及其启示

宪法解释的重要性已经得到了普遍的认可,而在宪法解释方法的历史发展中,存在着两大分支:德国传统和美国传统,二者分别以文义解释和原旨主义为主导性解释方法。虽然两种传统有着诸多差异,但从20世纪以来却出现了趋同的倾向,以重视社会学解释方法为集中表现。在两种传统的差异与趋同中,中国宪法解释可以受到多方面的启示,包括回归宪法文本、期待个案发轫、扩展主体范围和重视社会效果等。     

浅析宪法司法化的含义与现状

早在80年代,理论界就曾讨论宪法司法化问题.宪法司法化的障碍源于最高人民法院1955年和1986年做出的在法院判决中不准引用宪法的两个批复.最近,最高人民法院在"冒名上学"案中做出了关于法院判决中可以引用宪法的相反批复,从而使宪法司法化问题再度引起理论界的关注.本文拟就宪法司法化的含义、现状和难题作一剖析.     

Overcoming the division bloc and its limitations: a Gramscian approach to South Korean social formation

Abstract

Colonialism affects post-colonial social formations in a variety of ways. Japanese colonial rule had a far-reaching influence on South Korean post-colonial social formation. Most legacies of colonialism diminished as time went by, but one legacy of colonialism continued or even increased its effects on the South Korean political economy from the 1960s – namely, the division of Korea. This article provides an alternative Gramscian approach to the analysis of the social formation of South Korea, with due consideration of the division of the peninsula. For that purpose, it introduces the concept of a division bloc, adapting Gramsci’s concept of a historical bloc to develop an analysis of a social formation that is unique to South Korea. Then, I explicate the two events that have been most damaging for the division bloc – the 1997 economic crisis and the 1998–2007 inter-Korean reconciliation – describing them as an organic crisis and a hegemonic project, respectively. Following this, I present reasons why the counter-hegemonic efforts of liberal nationalists to overcome the division bloc failed.     

State transformation goes nuclear: Chinese National Nuclear Companies’ expansion into Europe

Abstract

Most of the literature on state transformation focuses on China’s relations with African, Asian and Latin American countries and the National Oil Companies’ overseas expansion to show that China has become fragmented, decentralised and internationalised. This article contributes novel findings by focusing on China’s relations with Europe and the actions of China’s National Nuclear Companies (NNCs). It shows that NNCs, which have become relatively autonomous actors, often pursue their agendas of expansion into Europe without much coordination with, or even in contradiction to, other ministries’ agendas and interests, especially the Ministry of Foreign Affairs. Instead of being orchestrated by the central government, their expansion reflects considerable disorganisation and sometimes undermines China’s official strategy. The article demonstrates this through case studies of NNCs’ involvement in the UK and Romania.     

Constitutional reform and new patterns of electoral violence: evidence from Kenya’s 2013 elections

In places prone to electoral violence, what effects can constitutional changes have on elites’ incentives to organise conflict? This article develops two hypotheses to address the above question. It proposes that in places where national reforms find sub-national resonance, national and local politicians’ incentives regarding the electoral utility of conflict will align. However, in places where national-level changes fail to be locally relevant, these incentives will deviate from one another. The research illustrates these logics through a controlled comparison of two Kenyan counties: one that experienced electoral violence and the other that maintained peace around the 2013 elections.     

Statehood without an army: the question of the Kosovo Armed Force

ABSTRACT

Almost a decade after its declaration of independence, Kosovo continues to depend on NATO’s Kosovo Force (KFOR) for its protection. This article explores why Kosovo has not developed its own armed forces and how it could complete the process of security institution building through the establishment of a Kosovo Armed Force (KAF) in the future. Conceptually, the article highlights the role of different agents with diverging positions on the development of a KAF and the unfolding politicization of the issue, under conditions of legal uncertainty. The empirical analysis traces the stalemate regarding the creation of a KAF to legal restraints and the diverging positions of different parties on the issue. More specifically, the government’s inability to balance between the high expectations of Kosovo Albanians and the adamant objections of Kosovo Serbs has exacerbated the politicization of the debate.     

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.     

宪法诉讼的宪政价值初探

宪法诉讼制度是近代宪政理念及其制度建构发展到一定阶段的产物,并且自其产生以来就在整个宪法监督体系中发挥了不可取代的作用。宪法诉讼的价值是多元的,在宪法诉讼的价值体系中,宪政价值无疑具有最为重要的地位。宪法诉讼作为宪法的免疫器和宪政的守护神,对一国的宪政建设无疑具有首要的意义,即"无诉讼则无宪政"。     

Power of the law or power of the sword: the conflictive relationship between the executive and the legislative in nineteenth-century Peru

ABSTRACT

The Peruvian parliament was a central institution in the early republic, but so far very little has been written on its history. This is due to the fact that military leaders took control of power for most of the nineteenth century. This article reflects on three main questions: what was the role of the legislative in nineteenth-century Peru? What was its relationship with the executive power? And what part did conflict play in these relationships? Most initial congresses were tasked with writing up constitutions, because institutions had to be created, and there was a strong belief that having a written charter mattered. The strongmen who took power felt the need to obtain legitimacy from both constitutions, and elections, but often did not see eye to eye with congress. This led congress to be closed, particularly when legislators refused to bow down to presidential power.