正义：我国行政决策的理性诉求

作为行政管理活动的首要环节和重要基础,行政决策解决了政治资源的定位和分配,从而决定着行政管理活动的方向及方式取舍,并以其特有的权威引导和保证社会发展的方向。政治正义性与合法性的原理要求我国的行政决策必须坚持正义的理性诉求。但由于权力寻租的存在,监督机制的不健全以及行政决策的技术基础不够理想,我国部分行政决策的正义性明显不足。要增强我国行政决策的正义性,必须从根本出发,完善行政决策的制度基础,提高行政决策的技术基础,扩大行政决策的社会基础。     

经验法则与接近正义--以民事诉讼为进路

经验法则是法官依照日常生活中所形成的反映事物之间内在必然联系的事理作为认定待征事实根据的有关法则.它包括从一般的生活常识到关于一定职业技术或科学专业上的法则.经验法则具有盖然性程度的差异性和内容上的无限性,法官运用经验法则可以发现事实和应用法律,创造善的规则体系,更好地实现接近正义.     

刑法中的正当化行为与犯罪构成关系的理性思考

与大陆法系、英美法系均将刑法中的正当化行为置于犯罪构成体系之中的做法所不同的是 ,刑法中的正当化行为是游离于我国传统的耦合式犯罪构成体系之外的一个“活泼元素”。这样的关系 ,与现代刑事法治的精神不相契合 ,实有认真检讨和改进的必要。英美法系双层次犯罪构成模式为刑法中的正当化行为的纳入 ,尤其是超法规的正当化行为的充分展开 ,不仅提供了极其广阔的空间 ,而且因赋予其程序要件的色彩 ,从而突出强调了程序正义的价值 ,推动了宪法在刑事领域的司法化。因之 ,借鉴英美法系双层次犯罪构成的结构模式 ,吸纳我国传统犯罪构成体系中的合理成份 ,实现经验与理性的沟通 ,应当成为改造我国传统的耦合式犯罪构成体系的努力方向。     

试论市场规制法与行政法的关系

市场规制法是实体法和具体行政程序法的结合 ,市场规制法以公法为主 ,兼有公私法融合的特点 ,其私权救济部分通过民事诉讼实施 ,其刑事制裁部分除独立性的散在立法外已归入刑法典 ,均通过刑事诉讼实施 ,而其基本的实施方法则是行政和行政诉讼。     

How the court made a federation of the EU

We analyze the European institutional integration that took place in the 1950s and 1960s as a two-stage process. Firstly, an explicitly political project aims at establishing a European political community. The project is abandoned in the mid-1950s and political integration stops. At that time, the institutions of the Union take the form of a confederation. In a second stage, because of the failure of the European political community, a legal process of integration driven by the European Court of Justice takes place. This second stage of unification is more centralizing and in effect leads to a federalization of the European institutional structure. The transformation of the political structure of the European Union thus appears to result from the actions and decisions of a legal entity, the European Court of Justice.      

Justice Beliefs in School: Distinguishing Ultimate and Immanent Justice

This paper combines two recent developments in just world research: the conception of belief in a just world (BJW) as a resource for coping and well-being in everyday life, and the distinction between two different facets of BJW, namely belief in immanent justice (BIJ) and belief in ultimate justice (BUJ). Moreover, these two aspects are adapted to the school context and educational psychology. Scales for measuring ultimate and immanent justice in schools were developed within a German pilot reform project with a sample of 1274 pupils. The two facets could be distinguished by means of factor analysis. The reliability of the two scales is satisfactory, and their validity is confirmed by their differential correlational patterns. Results show that not every form of BJW automatically functions as a coping resource. In fact, only BUJ is able to protect pupils' mental well-being, whereas immanent justice can actually jeopardize well-being. Similarly, BUJ is associated with the perception of solidarity and learning enjoyment in class, whereas BIJ is more closely associated with the experience of rivalry and competition in class. Finally, the socialization of the two justice beliefs is considered. The cross-sectional data provide some evidence to suggest that friendly and supportive parenting styles can promote BUJ, whereas strict parenting styles may further BIJ. More longitudinal research is needed to obtain further insights into these phenomena.     

Electronic evidence: A proposal to reform the presumption of reliability and hearsay

There is a general concern amongst judges, lawyers and legal scholars that evidence in digital format is not to be trusted, given that it can be altered and manipulated with ease. Some jurists have called for a UN Convention on matters relating to the authentication and admissibility of electronic evidence. It is debatable whether such a Convention is necessary, but guidance of an international nature might be welcome, providing that any such guidance remains guidance, and does not ossify into legal requirements that fail to take into account the dynamic and constantly developing changes in information technology. In any event, the accuracy of the presumption in England & Wales that a computer is in order at the material time is highly debatable, and it is suggested that this presumption ought to be reformed.     

Can justice be achieved for slave descendents in Mauritius?

This article discusses challenges to achieving justice for slave descendents in Mauritius 177 years after the abolition of slavery. It reflects on the 2009 institution of a Truth and Justice Commission (TJC) in Mauritius to investigate the legacies of slavery and indentured labour. It is argued that time, the ethnic and cultural complexity of Mauritius as well as the TJC itself makes it difficult for Mauritians to achieve restorative justice for slave descendents. Reviewing transitional and restorative justice, the article argues that the Mauritius case study is potentially useful to reflections on the issue of social justice for ancient atrocities and for reflections on the challenges of reparations in complex and democratic societies. It concludes that the greater participation of civil society is required in decisions regarding reparations and that such decisions need to be grounded in contemporary and democratic approaches to achieving justice and the protection of human rights.     

Institutional journalism in a revolutionary crisis: the press as an aide to the Muslim Brotherhood 2011–2012

This article is based on the hypothesis that the Egyptian institutional media played an active role in the Egyptian ‘Arab Spring’ revolution in 2011 and analyzes how Egypt's official newspapers constructed and presented a moderate and positive image of the Muslim Brotherhood (hereinafter the Brotherhood) despite the fact that they had labeled the Brotherhood ‘the outlawed movement’ a year earlier. In order to examine whether their attitudes changed after the downfall of the Mubarak regime, a critical discourse analysis of newspaper texts has been made of the news columns written throughout 2011 of two of the most popular Egyptian newspapers – al-Ahram (n = 115) and al-Gumhuriyya (n = 94) both of which identify with the Egyptian government's official policy. In addition, an analysis made of three of the Brotherhood's publications (n = 72) (N = 281) revealed that the Brotherhood exploited the printed media not only to replace the regime but also to gain control of its narrative. Ultimately, by controlling the shaping of public opinion, the media contributed to the drawing of a parallel between the motivation that formed the basis of the mass protest and the Brotherhood's agenda.     

Equality of resources and the demands of authenticity

One of the most distinctive features of Ronald Dworkin’s egalitarian theory is its commitment to holding individuals responsible for the costs to others of their ambitions. This commitment has received much criticism. Drawing on Dworkin’s latest statement of his position in Justice for Hedgehogs (2011), we suggest that it seems to be in tension with another crucial element of Dworkin’s own theory, namely, its endorsement of the importance of people leading authentic lives – lives that reflect their own values. We examine this tension between responsibility and authenticity, and some strategies Dworkin does and could deploy to defuse it, which we think are unsuccessful. We then propose a solution for reconciling the demands of responsibility and authenticity, which is, so we claim, friendly to Dworkin’s fundamental commitments but which leads to a revisionist interpretation of the demands of equality of resources.