法律的不确定性与法治的可能性

法律的不确定性并不意味着法律合法性的丧失和法治理想破灭。法律体系必然包括不确定的法律。法律不确定性与法律的客观性是相容的。主流法律理论并不必然坚持法律的确定性立场,但是必然坚持法律的客观性立场。法治理念的经典阐述者富勒、拉兹和菲尼斯都强调法律的明确性、可预测性和稳定性。他们都没有把法律的确定性列为法治的要件。法律的不确定性意味着法官在疑难案件中需要行使自由裁量权并创制新的法律。只要不确定的司法判决具有合法性、客观性和可预测性,即使法律是不确定的,法治理想的实现也是可能的。     

Fragile States: A Donor-serving Concept? Issues with Interpretations of Fragile Statehood in Afghanistan

Abstract

The paradox of attempting to (re)construct state institutions without considering the socio-political cohesion of societies recurs throughout the world, most notably today in the Middle East, Africa and the Balkans. This essay tries to shed some light on the debate around the concepts of state and nation-building. Drawing on a sociological understanding of the modern nation-state, it contends that it is impossible to conceive of statebuilding as a process separate from nation-building. This essay identifies two different schools of thought in the discussion concerning the statebuilding process, each of which reflects different sociological understandings of the state. The first one, an ‘institutional approach’ closely related to the Weberian conception of the state, focuses on the importance of institutional reconstruction and postulates that statebuilding activities do not necessarily require a concomitant nation-building effort. The second, a ‘legitimacy approach’ influenced by Durkheimian sociology, recognizes the need to consolidate central state institutions, but puts more emphasis on the importance of socio-political cohesion in the process. Building on this second approach and demonstrating its relevance in contemporary statebuilding, this article concludes with a discussion of recent statebuilding attempts and the ways external actors can effectively contribute to statebuilding processes.     

Security Provision after Regime Change: Local Militias and Political Entities in Post-Qaddafi Tripoli

This paper discusses the way the newly formed political entities and the local militias engage in statebuilding practices during Libya's transitional period of 2011–12. Focusing on the encounters between these actors in the security field, it provides insight into the capacity and strategy of national actors to build state structures and to develop the political arrangements that they deem necessary. It does so by identifying the key actors involved, as well as the interactions between them and the constantly evolving relations of control, power and authority. It shows how actors in the security field engage with each other in their efforts to expand and to institutionalize networks and influence, and the competition and alignments with other security actors that are active in the transitional phase and thereafter.     

The Common Security and Defence Policy as an act of American hegemony

Abstract

The financial crisis endangers the security of NATO's members and partners. As such, NATO has a formal obligation to mobilize its resources to aid members in overcoming current economic challenges. NATO can play a valuable role on three levels. First, NATO can aid members in rationalizing their military procurement and manpower systems, thus reducing the fiscal burden of maintaining adequate defenses. Second, NATO can press the ECB and the EU to modify arrangements governing the Euro so as to minimize the risk that EMU will collapse. Finally, NATO has a “soft power” role in vigorously defending the liberal economic order and democratic political institutions of the Western Alliance from the ideological attacks that inevitably follow financial crises.     

Bureaucratic power at play? The performance of the EU in the International Atomic Energy Agency

This article examines the performance of the European Union (EU) in the International Atomic Energy Agency (IAEA). Following Barnett and Finnemore, the article argues that the EU as an intergovernmental organization (IO) possesses bureaucratic power based on high technical knowledge and rational–legal authority that it can use to gain influence in the Agency. The EU uses its technical knowledge to be a first-mover in political and technical discussions, and uses its financial support to influence the Agency's technical standards and practices for nuclear safeguards, security, and safety. Nevertheless, the analysis shows that its rational–legal authority as an international organization is limited. Being a regional IO, it does not automatically possess the impartiality and hence legitimacy that ordinarily characterize an international organization. Thus, to further improve its performance in the IAEA, the EU must look beyond internal policy issues and focus on its external legitimacy and standing as well.     

A critical evaluation of American drone strikes in Pakistan: legality,legitimacy and prudence

This article critically evaluates the American counterterrorism strategy of carrying out drone strikes in the tribal areas of Pakistan to enquire whether undertaking these actions could be described as a responsible policy. The analytical framework is introduced through the idea that, being a great power, the United States has a responsibility to act legally, legitimately and prudently. This framework is then applied to the current case study. The analysis concludes that it is not possible to classify the said policy as a responsible one.     

Moral Dilemmas of Community Leaders and Sense of Community

Abstract

This paper draws on Kohlberg's tiieory of moral development, and on an empirical research conducted with leaders (two women, two men) in Venezuelan urban working-class communities. The leaders were repeatedly interviewed during a two-year period, about their experiences leading their communities. Those narratives were analyzed and discussed with them. Based on these grounds, two interrelated products were constructed: (1) Three moral dilemmas to be used in educational discussions with community leaders such as members of organized community groups; civic volunteers, officers from non-governmental organizations working with communities, and (2) A developmental approach to the sense of community in urban working-class communities. Finally, it argues about the need of balancing the current approaches of moral development, through a stronger emphasis on the community dimensions of that sense and its consequences on leadership.     

浅论执政合法性视野下的协商民主

在现代政党政治社会条件下,特别是社会转型时期,执政党执政的合法性资源面临流失,执政合法性问题变得日益突出。在程序合法性方面通过协商民主,尤其是人民政协的协商民主,在公共政策决策等各方面的协商中达成共识,对巩固执政党政府的执政合法性具有重要现实意义。     

The moral hazards of neo-liberalism: lessons from the private insurance industry

The key tenets of neo-liberalism regarding risk, governance, and responsibility are critically evaluated through an empirical study of the private insurance industry. Recent tendencies in this industry towards increasing segmentation of consumers regarding risk, and towards an expansion of private policing of insurance fraud, are analysed. The definition of moral hazard is broadened to include all parties in the insurance relationship, not just the insured. Moral hazards embedded in the social organization of private insurance lead to various kinds of immoral risky behaviour by insureds, insurance companies, and their employees, and to intensified efforts to regulate this behaviour. The analysis concludes with some critical observations about the neo-liberal emphasis on minimal state, market fundamentalism, risk-taking, individual responsibility, and acceptance of inequality.     

Nation,national remembrance,and education – Polish schools as factories of nationalism and prejudice

This article describes and attempts to explain the reasons for the conservative and nationalist character of Polish schools. The author uses data from surveys, analyzes political programs, postulates concerning education put forward by conservatives, and quotes poems emphasizing national identity from textbooks used at schools to teach reading skills. According to the author, it can be observed that nationalists build an atmosphere of aversion to immigrants, which affects racism in the school hallways. The article also presents the phenomenon of so-called school chambers of national remembrance, which are part of patriotic rituals practiced by Polish society. The author emphasizes that nationalism is the basis for changes in history programs of study, which are part of the educational reform implemented by the Law and Justice (Prawo i Sprawiedliwo?? – PiS) government. The cultural soft power, which is used to make reality more “national,” complements the administrative and political hard power of the PiS party – both tools are used to create an authoritarian-nationalist vision of social order.