美国司法能动的历史发展

司法能动是发端于美国的一种重要的司法哲学。美国司法能动的代表性时期为马歇尔法院、沃伦法院和伯格法院时期。美国的司法能动并非源于宪法的明确规定,而是联邦最高法院在马伯里诉麦迪逊案、布朗诉教育委员会案、罗伊诉韦德案等众多案件中通过＂立法性司法＂确立下来的。美国司法能动的成功有其特定的社会历史条件和法治背景。     

Net Gains and GUD Reactions: Patterns of Prejudice in a Neo-fascist Groupuscule

Using the student organization Groupe d'union et de défense (GUD) as a case-study, Griffin argues that the radical-right groupuscule should not be treated as an embryonic or stunted form of the inter-war 'armed party' epitomized by the Italian Fascist and German Nazi parties. Rather it is to be seen as a genus of extra-parlia-mentary political formation in its own right, perfectly adapted to the inhospitable climate of relatively stable liberal democracy and capitalism in which revolutionary nationalism has had to survive since 1945. As such the groupuscule's true significance lies in its existence as one minute entity in a swarm of similar organisms which can be termed the 'groupuscular right'. This takes on a collective force greater than the sum of its parts by conserving and transmitting fascism's diagnosis of the status quo and its vision of a new order despite its acute marginalization from mainstream politics. Having surveyed GUD's history and activities over the years, Griffin focuses on its ideology, which he identifies as a form of Third Positionism theoretically allied to anti-western Arab nations and heavily influenced by the Nouvelle Droite notion of 'cultural war' against the homogenizing effects of globalization and on behalf of a reborn Europe. He then considers the extraordinary network of historical and contemporary radical-right associations emanating to and from this one formation, a process considerably facilitated by the Internet. He concludes by suggesting that the importance of the groupuscular right, apart from its formation of cadres who may be recruited by mainstream parties such as the Front national, lies in its function as a self-perpetuating, leaderless, centreless and supra-national 'energy field' of neo-fascist beliefs, which, like the Web, is unaffected by the weakness or loss of individual nodal points (organizations).     

司法能动主义:司法实践超越法律形式主义

法律形式主义容易导致孤立、机械地理解法律,漠视条文背后的规范价值与意义。超越法律形式主义的进路就是要在司法实践中能动地理解法律。司法能动主义更贴近正义,不拘泥于条文和立法意图,更少强调先例,更具司法独立精神。但这并不代表法律扩张主义,在司法判断中突出行为的社会危害性也不是重刑主义,“能动”并不是对罪刑法定原则的违反,而是要求在该原则的基础上能动地理解构成要件与罪刑法定的关系,并根据规范目的与事物本质,对法律条文做出实质性而非形式性解释适用。     

To settle for a gendered peace? Spaces for feminist grassroots mobilization in Northern Ireland and Bosnia-Herzegovina

This paper offers an examination of citizenship in the context of post-conflict transformation as an important scenario in which to investigate the possibilities for the inclusion of women and women’s demands in the transition to peace. Drawing on interview and ethnographic data collected in Northern Ireland and Bosnia-Herzegovina, the paper highlights a site of tension between the aspirations for transformation and inclusion set out internationally in UNSCR 1325 and the gender underpinnings of consociationalism that shape the broader political, social and cultural context of citizenship in these case studies. It illustrates that women and women’s claims are repeatedly side-lined in favour of matters that are deemed of more vital interest in the quest for ‘peace’, such as relations between ethno-national groups, security concerns and stability of institutions. Despite this damning failure, women and feminist activists continue to mobilise, as individuals and collectively, in order to make demands for social, political and cultural transformation. The paper argues that attending to these dynamics is crucial if we strive to transform the gender regimes underpinning war/peace and acknowledge women as agents in this process.     

倦怠社会劳动美的精神政治学审视

韩炳哲将过度化生产、超负荷劳作和数字信息大爆炸所造成的个体疲乏与困倦的当代社会称为“倦怠社会”。倦怠社会是一个功绩社会、积极社会而非懒惰社会、消极社会,工作积极主义成为个人的精神政治学,自我加速和自我施暴成为倦怠社会成功的关键。在倦怠社会,自我精神暴力疾病日益突出,积极消费、娱乐主义成为化解倦怠的至上之选。然而,倦怠社会的劳动美学却表现出三种困境：作为整体存在论的劳动美学与作为个体生存论的劳动倦怠之困,作为技术决定论的劳动美学与作为自我生成论的劳动观念之困,神圣时间下的倦怠社会的时间辩证法之困。只有通过树立马克思主义的生活观和劳动观,弱化自我加速和功绩主体的定位,防止数字劳动的畸形,主动建构抵消数字资本、技术平台牵制的生活模式,回归美好生活的实质,才能构建劳动美和生活美。     

Chilean and Transnational Performances of Disobedience: LasTesis and the Phenomenon of Un violador en tu camino

This article analyses the performance Un violador en tu camino created by Chilean feminist theatre collective LasTesis, shared by millions and re-staged across the globe. It explores the relationship between the original piece and theorist Rita Segato's insights on rape culture, and how it counters aspects of this culture. It examines how the transnational spread of Un violador counters tendencies of MeToo, and examines four cases of the performance's re-staging in Latin America and beyond, showing how they make manifest the pervasiveness of rape culture as well as how groups have adapted them to speak to local issues.     

Articulating Body,Territory, and the Defence of Life: The Politics of Strategic Equivalencing between Women in Anti-Mining Movements and the Feminist Movement in Peru

In Latin America, rural and indigenous women have mobilised in defence of their territories and built strategic alliances with urban and mestiza feminist movements. This paper focuses on how these processes have played out in Peru, tracing the development of the discourse on ‘body as territory’, which articulates sexual and reproductive rights with territorial autonomy. It discusses the ‘cosmopolitics’ of translating the distinct concerns and worldviews of the women involved, arguing that this discourse has enabled partial recognition and strategic equivalencing but that it has failed to fundamentally transform the underlying asymmetric relations of power and privilege.     

法官应该是司法能动主义者——从李慧娟事件说起

李慧娟事件引发了学界不少的争论,引起了人们对于中国法官功能角色定位的思考。在比较法学以及价值层面上,法官应该成为一个能动主义者。为了避免在司法能动的过程中可能出现的弊端,应该通过"程序主义的司法能动范式"加以制约和保障。     

On collective assertiveness and activism during the immigration process: a case study of Yemenite immigrants who founded Kiryat Shmona – 1949–1953

This article focuses on the ways in which over 200 families of Yemenite immigrants, who founded the city of Kiryat Shmona, the development town situated at the edge of Israel's Northern District, functioned as a group during the immigration process. This case study coincides with the trend – within research of mass immigration to Israel – that relates the historical narrative through the perspective of the immigrant and settler groups, rather than from the vantage point of the establishment in charge of their absorption. The affair could have gone down in the annals of history as a story of weakness and victimhood: hundreds of immigrants were sent off to settle in an outlying peripheral region and were compelled to integrate into an environment where the financially and political-powerful kibbutzim were preponderant. Yet the Yemenite immigrants of Kiryat Shmona turned out to be a consolidated, opinionated, fighting and stubborn force that succeeded, in trying conditions, to assert their voice, struggle for their values and identity, affect major changes within the immigration–absorption system.     

From encountering confederate flags to finding refuge in spaces of solidarity: Filipino temporary foreign workers’ experiences of the public in Alberta

ABSTRACT

By critically assessing Filipino migrants’ fraught and uneven experiences of the public, I illustrate how race and class hierarchies operate to mark Filipino temporary foreign workers as foreign ‘others’. Because public spaces are structured in gendered and racialized ways, Filipino migrants strategically navigate public spaces to ensure their safety and create their own spaces of belonging that give them refuge against xenophobia. I argue further that the paradoxical discourses of multicultural inclusion and economic protectionism invoke the figure of the ‘good’ migrant and the ‘bad’ migrant. These, in turn, promote contradictory actions towards migrants, whose public acceptance hinge on wildly variable and changing notions of inclusion/exclusion and economic acceptability. These lead to the passage of inconsistent policies where migrants are read as being ‘good’ one day, and as being ‘bad’ the next.