正当立法程序生成的伦理机理

立法程序是一种宪法性法律程序,因而,对其生成机理的探讨,必须立基民主宪政的大背景,在正当法律程序如何生成的视域中进行。在对当今流行的四种程序正义论模式进行学理检讨之后,我们不难发现,\"真理一致论\"是正当法律程序的最佳分析工具。真理一致论中的立法程序,既要求形成合意基础上的主体间性,即有着不同利益需求和价值取向的公民作相互的交流、表达、妥协,以及基于此上而形成的一致性意见;又要求形成主客体间的相互吻合性,即用以指导立法者运作立法权的建基于主体间性的价值观念以及法律所欲表达和实现的具体价值目标,都必须符合客观的社会和法的历史与逻辑发展规律。事实上,依托于这一伦理机理而生成的正当立法程序,其与人类生活目的及价值的实现具有直接的内在一致性。     

What price fairness when security is at stake? Police legitimacy in South Africa

The legitimacy of legal authorities – particularly the police – is central to the state's ability to function in a normatively justifiable and effective manner. Studies, mostly conducted in the US and UK, regularly find that procedural justice is the most important antecedent of police legitimacy, with judgments about other aspects of police behavior – notably, about effectiveness – appearing less relevant. But this idea has received only sporadic testing in less cohesive societies where social order is more tenuous, resources to sustain it scarcer, and the position of the police is less secure. This paper considers whether the link between process fairness and legitimacy holds in the challenging context of present day South Africa. In a high crime and socially divided society, do people still emphasize procedural fairness or are they more interested in instrumental effectiveness? How is the legitimacy of the police influenced by the wider problems faced by the South African state? We find procedural fairness judgments play a key role, but also that South Africans place greater emphasis on police effectiveness (and concerns about crime). Police legitimacy is, furthermore, associated with citizens' judgments about the wider success and trustworthiness of the state.     

The Dual Use of an Historical Event: ‘Rwanda 1994’, the Justification and Critique of Liberal Interventionism

This essay places the 1994 genocide in Rwanda in the context of the academic and political rise of liberal interventionism since 1990. It argues that this historical event is important for the debate about ‘humanitarian interventions’ in two different ways: on the one hand, as a signifier, ‘Rwanda 1994’ has been used (or, for that matter, misused) in order to justify an almost unlimited international agenda of liberal interventionism and social engineering; on the other, the genocide that could arguably have been prevented represents the exceptional case where military intervention can indeed be justified—but precisely because it is not in need of a specifically liberal justification. What would have made a military-based prevention of genocide justifiable in this particular case is precisely the aim to prevent something that is universally agreed to be unacceptable (genocide). The liberal twist in the justification narrative, in contrast, tends to emphasize the difference between the (liberal) ‘us’ and the non-liberal ‘them’, consequently claiming the legitimate right for the ‘us’ to decide about the use of force exclusively, that is, without the ‘them’. The continuation of the narrative into answering the post-intervention question ‘what now?’ then leads consequently into the necessity of imposing one's own system of rule as a general norm without due attention to the specifics of the situation ‘on the ground’. The exceptional features of ‘Rwanda 1994’ (the empirical event) thus point in a critical way to all those cases where ‘Rwanda 1994’ (the signifier) has been used to make the case for an ever-expanding agenda of liberal (‘just’) war.