对我国学生权利保护四个法律问题研究

学生和学校之间的关系虽然有不平等的一面,但依然属于民事关系,属于民事合同关系,而非属于国家行政管理关系。学生的权利包括四个层次,即首要权利、作为学生而应当享有的其他权利、作为自然人而应当享有的其他民事权利和作为公民而应当享有的公权利。有必要对学校的权力进行控制,这种控制包括目的性控制和程序性控制。学生权利保护法的体系结构应当以此为基础而确定。     

形式理性的误读、缺失与缺陷--以刑事诉讼为视角

形式理性关注法的周延性和法的权威性,它是法治的必要条件,而非充分条件。我国刑事诉讼法缺失形式理性的基本要素,既没有体现法的周延性,也缺乏法的和谐性,更缺少法的独立性和权威性。在我国实现法治的过程中,要清醒认识到法的形式化缺陷,但当前没有必要刻意地强调这种缺陷。     

民事执行检察监督权:价值、根据与立法完善

民事执行检察监督权,作为具有比法院内部监督更高的透明度,更强的监督力度,以及更能取信于民的权力,不仅有利于保证执行公正、制约"执行乱",以及在我国的执行实践中具有极大的实用价值,而且还具有法律上、中国宪政体制上,以及国家司法权力配置上的根据。对于这种权力,基于我国民事执行的现实需要,应当从立法上作进一步的完善。     

从独立到权威——对司法独立的一种反思

学界对于司法独立的急论似乎已经平息,普遍认为它是成就法治中国的基础条件,甚至把对司法独立的追求视为中国司法改革的根本性问题,这种对司法独立过于迷信的思潮严重压缩了对司法独立理性思考的空间,使得人们往往忽视司法权威较之于司法独立更为重要的地位.因此,很有必要在检讨司法独立的基础上引起大家对司法权威的关注.     

论宪政的行政权运行模式及其价值取向

行政法学界从哲学认识论和价值取向上概括出调整行政权的三种理论模式,即控权论、管理论和平衡论。本文研究行政权的运行模式则是在此基础上,从哲学方法论和宪政制度上探讨行政权由静态划分(宪法定位)到动态运行(行政法调整)及其司法监督机制所表现出来的三种不同制度模式、运行方式以及价值取向。     

Business interests in salmon aquaculture certification: Competition or collective action?

Research recognizes that strategic business interests can provide an important driver of private regulation, even in the absence of significant societal pressure and non‐governmental organization‐constructed demand. This article examines a range of competition and collective action‐related interests that can motivate firms to promote and adopt certification schemes. We pay particular attention to the hitherto underexplored collective action interest to safeguard common‐pool resources, upon which an industry may depend to sustain yields. Based on a case study of salmon aquaculture certification, the article argues that while the corporate motives repertoire includes strengthening competitiveness and industry reputation, safeguarding shared waters for culturing salmon is key to explaining industry commitment to and adoption of private regulation in this sector.     

Knowledge production in/about conflict and intervention: finding ‘facts’, telling ‘truth’

ABSTRACT

This article has a twofold aim. First, it discusses the contributions to the scholarly field of conflict knowledge and expertise in this special issue on Knowledge production in/about conflict and intervention: finding ‘facts’, telling ‘truth’. Second, it suggests an alternative reading of the issue’s contributions. Starting from the assumption that prevalent ways of knowing are always influenced by wider material and ideological structures at specific times, the article traces the influence of contemporary neoliberalism on general knowledge production structures in Western societies, and more specifically in Western academia, before re-reading the special issue’s contributions through this prism. The main argument is that neoliberalism leaves limited space for independent critical knowledge, thereby negatively affecting what can be known about conflict and intervention. The article concludes with some tasks for reflexive scholarship in neoliberal times.     

Afghanistan’s Taliban – Legitimate Jihadists or Coercive Extremists?

ABSTRACT

The military intervention in Afghanistan in 2001 was portrayed as a fight to oust the extremist Taliban. But the Taliban have long been regaining influence, with the military victory of the Afghan government and its foreign allies now seeming less likely than ever. In light of these developments, this article investigates what the affected people – rather than the foreign interveners – think about the Taliban, and whether they perceive them as coercive or legitimate. Building on a conceptual understanding of legitimacy that has been adjusted to the dynamics of conflict-torn spaces, the article suggests that people judge the Taliban on the basis of how their day-to-day behaviour is perceived. While the Taliban are a coercive threat in urban centres and other areas where they launch attacks, they nonetheless manage to construct legitimacy in some of the places which they control or can access easily. A major source of their legitimacy in these areas is the way in which they provide services – such as conflict resolution – which some people consider to be faster and fairer than the state’s practices.     

Authority in statebuilding as communicative practice. The Joint Working Group on the Constitutional Framework in Kosovo

Post-war constitution-making touches the future identity of the concerned society. In externally led democratization, it can turn into a challenging negotiation process between international and so-called local actors. But who can claim the authority to define and interpret identity and fundamental norms of society, and on what grounds? Based on an analysis of the “Joint Working Group on the Constitutional Framework” held in spring 2001 in Kosovo, the article argues that external actors have a structural disadvantage in the authoritative communication with local actors, even if equipped with a strong international mandate. While external actors can set the opportunity structures to negotiate constitutional politics, local actors will use every chance to publically claim authority on their behalf in the process. Guided by the theoretical framework of interpretative authority (Deutungsmacht), the article concludes that we have to understand authority in statebuilding primarily, not as an attribute of actors, but as an outcome of communicative practices.     

Large-scale land acquisitions,state authority and indigenous local communities: insights from Ethiopia

The convergence of diverse global factors – food price volatility, the increased demand for biofuels and feeds, climate change and the financialisation of commodity markets – has resulted in renewed interest in land resources, leading to a rapid expansion in the scope and scale of (trans)national acquisition of arable land across many developing countries. Much of this land is on peripheral indigenous peoples’ territories and considered a common property resource. Those most threatened are poor rural people with customary tenure systems – including indigenous ethnic minority groups, pastoralists and peasants – who need land most. In Ethiopia large areas have been leased to foreign and domestic capital for large-scale production of food and agrofuels, mainly in lowland regions where the state has historically had limited control. Much of the land offered is classified by the state and other elites as ‘unused’ or ‘underutilised’, overlooking the spatially extensive use of land in shifting cultivation and pastoralism. This threatens the land rights and livelihoods of ethnic minority indigenous communities in these lowlands. This article argues that recent large-scale land acquisitions are part of state strategy for enforcing political authority over territory and people. It examines the implications of such strategy for indigenous ethnic minority groups, focusing particularly on the Benishangul-Gumuz region.