The Politics of Memory/Errinerungspolitik and the Use and Propriety of Law in the Process of Memory Construction

The post-Second World War trial for the crime against humanity from the start assumed pedagogical proportions, with the tribunals involved conscious that their legal verdicts would represent historical pronouncement and national values. The newly defined crime has been asked to institutionalize far more than the traditional task of adjudicating the guilt or innocence of the defendant. The trials themselves are meant to define the past, create and crystallize national memory, and illuminate the foundations of the future. I suggest that, by placing a burden on law that it is not designed to bear,we risk deforming law and legal principle. We risk creating an edifice that will not be equal to the task of memory, that will trivialize the memory it seeks to establish and fortify and, worst of all, that may betray law itself by subverting it from within. This revised version was published online in July 2006 with corrections to the Cover Date.     

影响司法效果的因素分析

司法效果包括法律效果与社会效果。作为法律功能实现程度的具体表现,司法效果反映的是一个法域司法运行的整体状况。通过对司法效果进行科学评价,人们可以掌握法律对社会需要的反映程度,社会对法律的认识和遵守程度,司法裁判的公正程度等,它是立法完善和司法改革的重要依据。阐明宏观因素与微观因素对司法效果的影响,有助于设计司法效果的实现路径。     

Judicialization of politics or politicization of the judiciary? Considerations from recent events in Thailand

Abstract

Courts are becoming major players in the political landscape of Southeast Asia. This paper seeks to examine the causes and consequences of this new trend with particular reference to Thailand. Our study primarily analyzes the behavior of the Thai Constitutional Court during the political crisis in 2006–2008; the findings suggest that recent judicial activism and assertiveness in political matters, while partly explained by the interests of judges themselves and by the constitutional rules guiding their activities, is best understood as a direct consequence of the intervention of the monarchy, to which the judiciary has traditionally been closely aligned. Accordingly, the Thai case not only provides new evidence about what may be driving the new judicialization trend, it also draws attention to problematic aspects of this trend, namely the gradual politicization of the Thai judiciary and with it the erosion of the rule of law in Thailand and its replacement with rule by law. Our findings may also illuminate some larger issues at the intersection of politics and the courts throughout the region in ways that advance the theoretical understanding of both.     

Pakistan: Crisis of a Frontline State

For more than 50 years, Pakistan has functioned as imperialism's “frontline state.” The military has remained the country's dominant political player and the basic precepts of bourgeois democracy remain conspicuous by their absence. Since the military coup in October 1999, the configuration of power in Pakistan has become subject to serious internal contradictions, in large part because of the “war on terror” and the loss of public prestige of the military. These contradictions have intensified in the wake of a lawyer-led street movement sparked by the military top brass' dismissal of the country's chief justice in March 2007. Since then the country's most well-known politician, Benazir Bhutto, has been assassinated and her Pakistan People's Party has swept to power in general elections held in February 2008. However, the crisis of the frontline state has not ebbed, and the oligarchic system of power remains subject to rupture.     

Frustration: The mold of judicial philosophy

Abstract

The Framers understood the Constitution to be the fundamental expression of the rule of law over against the arbitrary, intemperate, and unjust “rule of men” that all too frequently existed in the political world, unfortunately both democratic as well as monarchical. Accordingly, the rule of law requires a well functioning political and legal system that includes legislative checks and balances, the separation of power between the President and Congress, an independent judiciary, federalism, etc. What happens when this “Madisonian” constitutional system, designed to express “the deliberate sense of the community,” runs into a Judicial branch that, in effect, claims we live under a Constitution, but the Constitution is what we say it is. Must the Judiciary itself be subject to the rule of law, and the decisions of a constitutional majority, or does their “independence” extend to being independent of the constraints of the rule of law and, thus, decent majority rule? How did the original John Marshall Court answer these questions, and what light do the leading cases and controversies shed on the relationship between the Marshall Court and the Madisonian System? Are we facing a situation of Marshall v. Madison?     

检察官客观义务

检察官的客观义务是大陆法系检察官定位的基本特征,也是检察官具有司法官属性的必然体现和要求。检察官的客观义务原则,越来越得到世界各国刑事诉讼和司法制度的确认,体现为一种发展趋势。从该原则的发展中,我们能够更清楚地把握检察权在现代法治中的发展走向。     

中俄毗邻地区跨国犯罪问题及中俄警务司法合作

中国与俄罗斯山水相连。随着两国各领域关系的发展,经贸合作和人员相互往来愈来愈密切,跨国犯罪问题也严重困扰两国的警察和司法部门,尤其是在两国毗邻地区,跨国犯罪问题更显突出。近年来,中俄毗邻地区开展了跨国警务司法合作,预防和打击跨国犯罪,通过联合侦查、协助办案、共同办案、相互配合调查取证、越境追捕、快速遣返等措施,有效地预防和控制了跨国犯罪,维护了双方的共同利益。     

谁来解释法律--关于我国法律解释权配置的思考

在我国当前的法律解释体制中,立法机关、行政机关和司法机关都可以解释法律,带来了法律解释的混乱,引发了一系列的矛盾。无论是英美法系国家还是大陆法系国家,其法律解释权最终都掌握在司法机关和法官手中。我们可以借鉴它们的体制,结合我国国情,制定一部法律解释法来规范法律解释活动,明确赋予司法机关法律解释权,实现最高人民法院被动统一的法律解释与法官在个案中的法律解释的结合。     

论我国法官选任制度的重构

2002年7月18日,最高人民法院发布了《关于加强法官队伍职业化建设的若干意见》,提出了法官职业化的目标,而法官职业化目标的实现,最关键的是改革和完善现有的法官选任制度,把真正高素质的法律人才选拔到人民法院。因此,提高法官任职的社会阅历条件、明确法官选任程序、建立严格科学的考核制度,建立起符合法官职业化特点的完备的法官选任制度十分必要。