宪法解释方法的两种传统及其启示

宪法解释的重要性已经得到了普遍的认可,而在宪法解释方法的历史发展中,存在着两大分支:德国传统和美国传统,二者分别以文义解释和原旨主义为主导性解释方法。虽然两种传统有着诸多差异,但从20世纪以来却出现了趋同的倾向,以重视社会学解释方法为集中表现。在两种传统的差异与趋同中,中国宪法解释可以受到多方面的启示,包括回归宪法文本、期待个案发轫、扩展主体范围和重视社会效果等。     

地方“土地财政”之合宪性控制

地方"土地财政"的宪法基础,不仅在于"租税并存的财政分权体制",更在于宪法文本所确立的"赶超型战略"。其不仅促进了社会经济高速增长等宪法上"国家目标规定"之实现,亦在实质上侵害到公民的"自由权"、"生存权"等基本权利,其间已经隐含了宪法规范的效力冲突。为此,我国需依循"人权保障"的宪法理念,在整个财税法制领域贯之以"量能课税(费)"、"生存照顾"等法治原则,建立规范化的财政转移支付制度,并推进法治化的财政支出制度改革,以消减地方"土地财政"的扩张冲动,遏制其负面效应之滋生。     

浅析宪法司法化的含义与现状

早在80年代,理论界就曾讨论宪法司法化问题.宪法司法化的障碍源于最高人民法院1955年和1986年做出的在法院判决中不准引用宪法的两个批复.最近,最高人民法院在"冒名上学"案中做出了关于法院判决中可以引用宪法的相反批复,从而使宪法司法化问题再度引起理论界的关注.本文拟就宪法司法化的含义、现状和难题作一剖析.     

The Weakness of Strong (and Weak) Ties: Obtaining a Government Job

ABSTRACT

Between merit principles and social contacts, how they facilitate individuals to obtain a government job in the United States remains unsettled. Based on a survey administered via Amazon Mturk, this study finds that merit-based selection constitutes the most significant means to obtain public jobs, particularly so in state and local governments despite of sizeable respondents claiming other venues. The use of social contacts, including both strong and weak ties, shows little advantage on obtaining public employment but proves significant in private organizations. Controlling individuals’ previous job obtaining experience, the study contends that variations on job obtaining methods can be reasonably attributable to institutional distinctiveness that features different rules, procedures and regulations. Merit principles are kept alive in governments, though challenges persist, particularly so in federal government. The study ends up with a discussion of research findings and their implications in HR practices.     

Normative behaviourism as a solution to four problems in realism and non-ideal theory

ABSTRACT

This article advances the case for ‘normative behaviourism’ – a new way of doing political philosophy that tries to turn facts about observable patterns of behaviour, as produced by different political systems, into grounds for specific political principles. This approach is applied to four distinct problems at the heart of the ideal/non-ideal theory and moralism/realism debates: (1) How to distinguish good from bad idealisations; (2) how to rank options of variable feasibility, cost, and danger; (3) how to distinguish legitimate acceptance of a given political system from acceptance based on coercion or false consciousness; and (4) how to translate abstract principles into concrete institutions. Objections against the general viability of normative behaviourism, and against the types of behaviour it tracks, are also considered.     

Inter-parliamentary relations in the United Kingdom: devolution’s undiscovered country?

Since 1997, the United Kingdom’s territorial constitution has undergone an immense process of change and has resulted in the establishment of separate legislatures and governments for the peoples of Scotland, Wales and, when Stormont is operational, Northern Ireland. These changes have spawned a whole series of relationships between the institutions of the devolved UK, at executive, legislature and civil service levels. However, while intergovernmental relations has been the subject of repeated debate, there has been little attempt to document and examine the way in which the UK’s four legislatures interact with one another, post-devolution. To the extent that these interactions, otherwise known as inter-parliamentary relations (IPR), have been the subject of scrutiny, it has been largely to bemoan their modest state and/or to suggest that stronger, albeit occasionally rather unelaborated, mechanisms be established. This article seeks to correct this deficit and provide a first step towards a clearer understanding of IPR in the UK, post-devolution. The article breaks the different levels of IPR down into three main strands: (1) parliament-parliament, (2) committee-committee and (3) official-official, and suggests that the main interactions that take place at each of these levels. Following this audit, the article concludes by highlighting the role that shared policy competence (a field that is set to grow with the UK’s withdrawal from the European Union) has played in driving IPR in the UK, post-devolution, and suggests some steps that may be taken to enhance IPR in the future.     

Constitutional reform and new patterns of electoral violence: evidence from Kenya’s 2013 elections

In places prone to electoral violence, what effects can constitutional changes have on elites’ incentives to organise conflict? This article develops two hypotheses to address the above question. It proposes that in places where national reforms find sub-national resonance, national and local politicians’ incentives regarding the electoral utility of conflict will align. However, in places where national-level changes fail to be locally relevant, these incentives will deviate from one another. The research illustrates these logics through a controlled comparison of two Kenyan counties: one that experienced electoral violence and the other that maintained peace around the 2013 elections.     

Statehood without an army: the question of the Kosovo Armed Force

ABSTRACT

Almost a decade after its declaration of independence, Kosovo continues to depend on NATO’s Kosovo Force (KFOR) for its protection. This article explores why Kosovo has not developed its own armed forces and how it could complete the process of security institution building through the establishment of a Kosovo Armed Force (KAF) in the future. Conceptually, the article highlights the role of different agents with diverging positions on the development of a KAF and the unfolding politicization of the issue, under conditions of legal uncertainty. The empirical analysis traces the stalemate regarding the creation of a KAF to legal restraints and the diverging positions of different parties on the issue. More specifically, the government’s inability to balance between the high expectations of Kosovo Albanians and the adamant objections of Kosovo Serbs has exacerbated the politicization of the debate.     

Participatory constitution-making and why it matters: A review of the Egyptian experience

This article considers the making of Egypt's post-Mubarak constitution after considering the fact that participatory constitution-making is accepted as a democratic norm allowing citizens to be involved in the creation of their constitution and their future. The author argues that the process by which a constitution is made is crucial for the framing and legitimising of that constitution. Therefore, political elites and state institutions should not wholly control the process. The views of two schools of thought – idealism and realism – are considered. These views, together with the influence of the state and the concept of participation of the citizenry in the constitution-making process, are measured against international law requirements and further applied in a critical evaluation of Egypt's constitution-making process from 2011 to 2014.     

宪法诉讼的宪政价值初探

宪法诉讼制度是近代宪政理念及其制度建构发展到一定阶段的产物,并且自其产生以来就在整个宪法监督体系中发挥了不可取代的作用。宪法诉讼的价值是多元的,在宪法诉讼的价值体系中,宪政价值无疑具有最为重要的地位。宪法诉讼作为宪法的免疫器和宪政的守护神,对一国的宪政建设无疑具有首要的意义,即"无诉讼则无宪政"。