Beyond Nancy Fraser's 'perspectival dualism'

The bifurcation between economically and culturally orientated perspectives has become a central trope in critical thinking on the problems of social justice and injustice. This paper attempts a critical explication and assessment of Nancy Fraser's recent work on this problem. She attempts to transcend the culture-economy divide by proposing a 'perspectival dualism' in which distinctive 'economic-redistributive' and 'cultural-recognitive' logics of justice are analytically distinguished and practically combined so as to furnish a balanced strategy for left-critical praxis. The paper seeks to demonstrate how and why Fraser's dualistic perspective fails, insofar as it is untenable to confine recognitive claims to the realm of culture, since they can be seen to underpin both redistributively and culturally oriented manifestations of social struggle. An alternative, multi-axial and 'metatheoretical' conception of recognition is offered, one which, it is claimed, can encompass both economic and cultural struggles within its theoretical ambit.     

以治理能力的提升促进社会公正——治理理论视域中的社会公正问题

从公正的角度来看,当前我国社会转型过程中,影响社会公正的一个重要原因就是治理理念和治理方式的落后,因而治理能力的现代化提升,是实现社会公正的一个重要途径;从治理理论本身来看,治理的一个目标就是公正,国家治理体系和治理能力的构建,必然要以公正的价值和公正的制度为基础。在治理视域中观察社会公正,通过治理能力的提升促进社会公正,不失为一种新视角。     

An Ethics-based Climate Agreement for the South Pacific Region

The aim of this article is to describe a comprehensive regional climate agreement for the South Pacific region. This agreement would integrate the usual view of climate negotiations among the developed countries as the sharing of mitigation costs, with that of the Pacific Islands, which focuses on the disproportion between responsibility for, and the efforts of, adaptation to burdens imposed by climate impacts. The agreement, moreover, is grounded on sound principles of justice and criteria of equity which give greater legitimacy to it and can persuade parties with conflicting interests to cooperate more closely on collective actions. On the mitigation side, discussion of the initial allocation of endowments focuses on the criterion of differentiated equality, taking account of undeserved inequalities as suggested by Rawls’ theory of justice as fairness. Endowments are initially distributed according to a formula whose reference is equal per capita distribution corrected for the most striking unjustifiable inequalities. Possibly a sound benchmark for the just financing of adaptation activities is the criterion of differentiated historical responsibility, again backed by Rawls’s theory, while the allocation of adaptation resources can be based on the criterion of lack of functionings, as substantiated in Sen’s capability approach. In practical terms, it is possible to envision the creation of an adaptation fund where each single contribution is proportional to cumulative emissions net of undeserved inequalities, and which allows participation by poorer vulnerable countries proportionally to their levels of human development.

The Council for the Administration of Criminal Justice and Protection of Juveniles

The Council for the Administration of Criminal Justice and Protection of Juveniles (Raad voor Strafrechtstoepassing en Jeugdbescherming) is an independent advisory, supervisory and judiciary board to the Netherlands Minister of Justice on matters relating to the prison system, the hospital order detention system, the probation system and the youth incarceration system. Members are recruited from a variety of backgrounds, such as magistracy, science, medicine, psychiatry and social work. As a rule, they have a full-time job in society. They are recruited by virtue of their expertise, competence and professional experience in relevant fields. Nowadays, there are about 60 members. The combination of the Council’s three tasks has been criticised. The argument is that the advisory and supervisory tasks of the Council could interfere with the independent and impartial nature of its judicial task. The supposed incompatibility of the three tasks has been one of the arguments of the Minister of Justice in defending his decision to set up an Inspectorate for the whole field of the administration of justice. This Inspectorate would overlap the Council’s supervisory task. So, legislation has been prepared in order to prevent overlap by taking away this task from the Council. The resistance to these plans was an important reason for the Dutch government to ask the Verwey-Jonker Institute to evaluate the performance of the Council. The Council performed very well in this evaluation. Its performance could not, therefore, really be used as an argument for curtailing its tasks. The independent nature of an Inspection Board is open to question, as it is functioning under the responsibility of the Minister of Justice. However, the Minister of Justice has not been convinced by this and other arguments, so there is a big chance that the Council will loose its supervisory task.

解读包公故事中的罪与罚

包公听讼断狱故事 ,突出的也是“罪与罚”的价值取向。正是基于这一原因 ,本稿在讨论包公故事中的法律问题时 ,首先标举“罪与罚”这个题目。除此之外 ,这一安排也有先“实体法”后“程序法”的技术考虑。值得引起我们思考的是 :在现实社会生活中 ,纠纷无论如何不会出现民事纠纷与刑事犯罪之间比例如此“悬殊”的情形。那末 ,何以馀以故事特别强调“罪与罚”这一主题呢 ?这正是本文着重研究的     

浅析我国刑事证据法律概念的不合理性

在刑事诉讼中,刑事证据是刑事诉讼得以顺利进行的前提和基础,鉴于刑事证据的重要性,我国现行的刑事诉讼法对刑事证据的法律概念予以明确的规定,围绕刑事证据的法律概念,诉讼法学界曾对刑事证据概念的内涵作过诸多阐述,但很少对其法律概念的不合理性进行过论证。有鉴于此,本文从立法、逻辑的角度并结合司法实践全面阐述我国刑事证据法律概念存在的不合理性。     

行政程序、行政正义与律师代理制度

程序权利是一种与实体权利和诉讼权利相并列的新型权利。在行政程序中,行政相对人、利害关系人具有诸多法定权利,这些权利可以也应该被赋予代理律师。律师在行政正义中扮演着重要角色,随着中国律师的法律职能和公共职能的拓展,行政程序中的律师代理制度也将变成中国最有发展潜力的一项法律制度。     

正义与秩序：法律理想目标的困惑——关于博登海默观点的思考

埃德加.博登海默认为法律是秩序与正义的综合体,但该观点存在着一定程度上的模糊性,正义与秩序二者本身就是从不同的角度考量事物,将正义的主观标准强加在秩序价值上并不能真正达致一种完整的和谐。从法律理想目标的新角度来考察,不管法律的基本价值是正义、自由还是秩序,这些内容最后都必然着眼于人类冲突的解决,只有解决人类冲突的法律才具有强大的生命力。     

Groups and Deliberation

We present a group‐based approach to the study of deliberation. Deliberation occurs in groups, yet many studies of deliberation do not take the group as a unit of analysis. We argue that group composition and the attendant social dynamics to which they give rise are an important aspect of deliberation. We offer several examples of ways to study these effects, including the interaction of gender composition and the group's decision rule in the context of an experimental study of decisions about justice, the effect of racial composition in simulated juries, and the effect of ideological composition in local meetings. We examine the consequences of these factors on a variety of outcomes, including individuals' private opinion, individuals' behaviour, and group decisions. In conclusion we discuss the implications that group effects have for empirical and normative theories of deliberation.