论类推思维在法律发现当中的地位——以孙斯坦有关类推思维思想为中心的考察

随着人们对传统法律三段论在法律适用过程中作用的反思,一种围绕着类推思维为中心的法律发现模式逐渐获得了人们的普遍认同。借助于未完全理论化协议理论,孙斯坦将类推思维在法律发现当中的地位和作用上升到推进民主司法的高度,从而更有力地彰显了类推思维在当代司法实践当中的重要性。类推思维是一个迈向民主政治的法治社会应该努力倡导的一种法律思维和法律适用模式,捍卫法治需要我们认真地对待类推思维方法在法律发现当中的地位。     

Failed agreements and their impact on subsequent mediation onset and success in intrastate conflicts

ABSTRACT

What impact do failed mediated agreements have on subsequent mediation onset and success? The question of mediation onset and success is undoubtedly important, given that mediation is one of the international community’s preferred conflict management tools, but its voluntary nature leaves room for the conflict parties to (dis)agree to talks and possible settlements. Existing research suggests that previous mediation outcomes can affect subsequent mediation efforts positively or negatively – depending on the outcome in focus. This article argues that failed agreements – an outcome of mediation that has not been accounted for in existing literature – underscore the persistence of the commitment problem, and therefore the hazards of sharing private information. Consequently, the conflict parties question the utility of mediation, and the likelihood of subsequent mediation onset decreases. If subsequent talks take place despite the failed agreement, the conflict parties refrain from sharing private information, and reaching an agreement becomes thus less likely. Drawing on the Uppsala Conflict Data Program’s (UCDP) Managing Intrastate Conflict in Africa data set and the UCDP Peace Agreement data set, the results strongly underline the negative impact failed agreements have on subsequent mediation onset, and thereby show that agreement longevity is crucial not only for peace duration but also for leaving the door open to subsequent talks.     

Anchoring the Peace: Civil Society Actors in Peace Accords and Durable Peace

Is peace more likely to prevail when the peace accord includes civil society actors such as religious groups, women's organizations, and human rights groups? This is the first statistical study that explores this issue. The article develops key claims in previous research regarding the role of civil society actors and durable peace, and proposes a set of hypotheses that focus on legitimacy in this process. The hypotheses are examined by employing unique data on the inclusion of civil society actors in all peace agreements in the post–Cold War period. The statistical analysis shows that inclusion of civil society actors in the peace settlement increases the durability of peace. The results further demonstrate that peace accords with involvement from civil society actors and political parties in combination are more likely to see peace prevail. The findings also suggest that inclusion of civil society has a particularly profound effect on the prospects for overall peace in nondemocratic societies.     

Mega-Regional Trade Deals in the Asia-Pacific: Choosing Between the TPP and RCEP?

The emergence of “mega-regional” trade agreements has recently become the most significant trade policy issue in the Asia-Pacific. Since 2010, governments in the region have launched negotiations for two new trade agreements: the United States-led Trans-Pacific Partnership (TPP) and the ASEAN-led Regional Comprehensive Economic Partnership (RCEP). Differentiated by their membership, scope and level of ambition, the TPP and RCEP embody competing visions for how the Asia-Pacific trade system should evolve, and regional governments must now make choices over which initiative better serves their economic and political interests. This article explores the trade policy choice posed by these mega-regional trade negotiations, reviewing the evolution of the Asia-Pacific trade system, the recent emergence of the TPP and RCEP, and the competitive dynamics inherent in the development of the two proposals. It argues that four key considerations (trade policy ambition, the role of ASEAN, US-China geopolitical rivalry and defensive concerns) will be of key importance in informing regional governments’ decisions as the TPP and RCEP move towards completion in 2015.     

‘High Resolution’ Indicators in Peacebuilding: The Utility of Political Memory

This article explores the use of political memory in examining, and providing indicators for, everyday processes of peacebuilding in divided societies, using Northern Ireland as a brief case study. Adopting a position critical of many formal peacebuilding indicators, the article argues for the utility of informal, ‘high resolution’ indicators that can be supplied by examining localized and everyday forms of post-conflict memory. In so doing, the article views the ‘dealing with the past’ and reconciliatory paradigm of social memory in identity driven conflicts as being inadequate for this purpose, and instead posits a more nuanced form of examining memory as a political arena. A case study of political memory in east Belfast is introduced to illustrate both the need for nuance in highlighting localized activity, and need to better reflect a complex and ambiguous peacebuilding environment. Suggestions for methodological approaches geared to capturing processes of everyday political memory, and how these processes can inform praxis, concludes the study.     

Building a Repressive Peace: The Case of Post-Genocide Rwanda

Abstract

Security, economic recovery, democracy and statebuilding are seen as tenets of post-conflict peacebuilding in the academic literature. In Rwanda, 15 years of post-genocide peace were built through security, economic recovery and statebuilding, but without democratisation. The result was a repressive peace. The Rwandan case suggests that post-conflict peacebuilding does not require democracy; that elections can reinforce authoritarian tendencies; and that statebuilding can lead to a repressive peace. It also suggests that the repressive peace can be durable, at least in the short to medium term.     

Privatization in Kosovo: ‘Liberal Peace’ in Practice

This article examines internationally led privatization in Kosovo as an example of international statebuilding. It concentrates on the period from 1999 to 2008, when privatization was planned and implemented under formal international management. International statebuilding is typically sought justified with the idea of ‘liberal peace’, and this article shows how the tension between the political and economic tenets of the idea of liberal peace manifested itself in Kosovo's internationally led privatization.     

Responsibility to Peace: A Critique of R2P

Abstract

The NATO bombing of Yugoslavia in 1999 led to the doctrine of R2P, which envisages the use of force in defence of human rights. But as the Kosovo conflict demonstrates, nothing is more destructive of human rights than war. The protection and promotion of human rights should be done through lawful and non-lethal means. This essay argues that citizens and states have a responsibility to peace as much as to human rights because human rights can only flourish in a condition of peace. This essay seeks to restore peace to its proper place in the discussion of international politics and human rights.     

Capacity-building at the Headquarter Level: The Case of EU Civilian Peace Operations

Abstract

This article traces the institutional evolution of the Council Secretariat that plans and supports EU civilian peace operations. During the early days of the European Security and Defence Policy in the late 1990s competing political priorities of big EU member states and a dominance of military structures put civilian administrators at a significant disadvantage. Between 2003 and 2007, however, the rising number and complexity of civilian missions generated pressure for reform, which eventually led to the creation of a civilian headquarters. The historical analysis provides the basis for assessing the EU's current institutional capacities for civilian crisis management. While some administrative capacity deficits have been addressed, increased institutional formalization and further politically motivated reforms may increase tensions and hamper the accumulation of expertise.