对宪法修正案的若干私法解读

按照宪法作为最高效力的法规范 ,私法所规定的财产关系和人身关系都要遵守宪法的内容 ,尤其是充分体现基于主体自由和主体平等的宪法原理。私法主体平等和给与平等主体的财产权以对等的尊重是私法对宪法提出的基本要求。     

Do a Law’s Policy Implications Affect Beliefs About Its Constitutionality? An Experimental Test

Although a substantial empirical literature has found associations between judges' political orientation and their judicial decisions, the nature of the relationship between policy preferences and constitutional reasoning remains unclear. In this experimental study, law students were asked to determine the constitutionality of a hypothetical law, where the policy implications of the law were manipulated while holding all legal evidence constant. The data indicate that, even with an incentive to select the ruling best supported by the legal evidence, liberal participants were more likely to overturn laws that decreased taxes than laws that increased taxes. The opposite pattern held for conservatives. The experimental manipulation significantly affected even those participants who believed their policy preferences had no influence on their constitutional decisions.     

新自由主义、东亚模式与经济发展

当前经济发展战略的分歧主要是新自由主义与东亚模式之争,前者执著于静态的比较优势,后者迷信于威权政治。对于处于工业化初期阶段的国家来说,自由贸易可以利用发达国家的扩散效应与产业转移,促进本国技术进步,改善贸易条件,节约技术开发的资金与时间,但对于进入工业化中期的国家来说,后发优势递减,技术引进日益困难,自由贸易将导致长期的贸易条件恶化;权威政府则由于社会资本的消蚀,民主法制的不健全,也产生了严重失灵现象,并进一步加剧市场失灵,双重失灵使东亚模式已不可持续。只有在建立民主宪政体制,制约政府失灵的基础上,通过有限贸易保护和积极的产业政策来纠正市场失灵,提高自主技术开发能力,后发国家才能改善本国贸易条件,加速工业化的发展。     

谈第四次修宪之现实价值

2004年3月14日第十届全国人民代表大会第二次会议通过了宪法修正案,这是1982年宪法制定以来的第四次修改,具有极其重大的现实意义。修改内容包括:“三个代表”和“政治文明”入宪;增加“国家尊重和保障人权”;明确和保护公民的私有财产权;提高非公有制经济地位;扩大爱国统一战线的阶级基础等。修宪内容从头至尾包含着“以人为本”的思想。     

谈我国宪法在司法审判中的适用

宪法是法律,在审判中适用具有正当性,然而宪法不是一般的法律,是根本法,在审判中的适用又具有有限性。在实行依法治国、建设社会主义法治国家的今天,宪法应当在审判中适用,但决不能走司法审查的道路,只能根据我国的国情建立专门机关(宪法法院)的宪法监督模式。     

Group Size, Group Heterogeneity, and Voting Rules: An Application of the Buchanan-Tullock Model to the European Union

In The Calculus of Consent, Buchanan and Tullock develop a theory of voting rules in which the optimal rule is determined by minimizing the sum of voters' external and decision costs. Other researchers have extended the Buchanan-Tullock model to include the effects of group size and heterogeneity on external and decision costs and, subsequently, on the optimal voting rule. Despite the prominence of the Buchanan-Tullock model in the constitutional, legal, and public-choice literature, their theory has not (to our knowledge) been tested. In this paper we test the Buchanan-Tullock model by examining the establishment and evolution of voting rules in the European Union. Over the past four decades, the European Union has experienced significant changes in number and heterogeneity, and we interpret the general movement towards, and call for, less inclusive voting rules as support for Buchanan and Tullock's original theory.     

Why we should not believe every lesson Andrew Moravcsik teaches us: A response

This article is a response to Andrew Moravcsik’s “What Can We Learn from the Collapse of the European Constitutional Project?”, published in No. 2, Vol. 47 (2006) of the PVS. In our reply we focus on three main points. First, we argue that Moravcsik’s apologia of the status quo does not convince in light of the challenges that a European Union currently with 27 member states and increasing heterogeneity is facing. Second, we discuss his causal chain model linking participation, deliberation and political legitimacy. We argue that Moravcsik confuses causality with conditionality. By doing so, he exaggerates claims of normative political science about the causal relationship between participation, deliberation and legitimacy, and makes it an unjustifiably easy target for critique. Third, we critically examine Moravcsik’s notion of democracy in order to show that his view of democracy as guaranteeing “certain social goods” brings about the risk of producing a theory of democracy without democracy.     

九九修宪与依法治国

九九修宪前夕,围绕宪法的稳定性与适应性、经济发展优先还是法制改革优先等问题, 人们展开了激烈的争论, 认清了修改宪法的必要性。九九宪法修正案确立了邓小平理论在国家中的指导地位, 明确了在现阶段的中国坚持社会主义就是坚持初级阶段、中国特色的社会主义, 稳定了家庭承包经营为基础、统分结合的双层经营体制, 确认了非公有制经济应有的法律地位。依法治国, 建设法治国家, 不仅要求我们从理论上区分法治与法制的概念, 明确法治与人治的分野, 坚持宪法确立的法治原则, 尤其要求我们在实践中建立有效的权力制约机制。     

Intimations of Unconstitutionality: The Supremacy of International Law and Judgment 238/2014 of the Italian Constitutional Court

Judgment 238/2014 of the Italian Constitutional Court reopens the debate on the extent of the immunity enjoyed by states for violations of jus cogens. The decision, which questions the authority of the ICJ's 2012 judgment in Germany v Italy, could certainly have effects on the formation of customary international law. In addition, it revives the discussion on the relationship between national and international law and on the supremacy of the latter over the former, especially if read in light of the previous Medellín and Kadi I decisions. Judgment 238/2014 is an opportunity to reappraise the role played by international law in domestic courts, particularly in cases where international law conflicts with core domestic constitutional values.     

The Liberal Left Opts for Terror

For a century, intellectual debate on political violence has been dominated by efforts to romanticize the extremist and to invest him with the aura of the altruistic “freedom fighter.” It is astonishing that in the post-9/11 era, the terrorist's image continues to remain habitually mystified and ennobled, while terror attacks are justified as self-defense. “Terrorist discourse” is indicative of the universality of the intellectual position of the Left with regard to terror, national discrepancies notwithstanding. The present article evaluates leftist liberals' attitudes towards terrorism in the 20th-century Russian Empire, Europe, the U.S., and especially Israel—one of the epicenters of terrorism today. The article proposes to examine psychological responses to terrorism in conjunction with a range of contemporary reactions to threats, acknowledged or displaced with an assortment of mental constructs and rationalizations.