Towards a critical realist perspective on African conflicts

With various attempts being made to address religious, ethnic and political conflicts in Africa, one question which continues to feature in public discourses concerns the contributions which the African academic community could make towards the understanding and resolution of conflict. This article demonstrates that ontological issues need to be critical in any attempts at effectively analysing conflicts. The merit of the critical realist philosophy of Roy Bhaskar, with its ontological concerns, is presented as an important analytical and resolution model which the African academic community can fall back on, to look for effective solutions to conflict on the continent. The thrust in this article is that the properties of the critical realist approach to social research make it practically adequate for analysing conflicts.     

行政规范在行政诉讼法律适用中的地位

行政诉讼中必须依据行政法规、参照规章以及规章以外的其他规范性文件,但是我国司法实践中对于规章以外的其他行政规范性文件的适用比较混乱,理论上没有明确的地位,导致规章以外的规范性文件有适用的必要但又缺乏适用的准则。文章从辨析行政规范的名称入手,通过分析不同学说,从新的角度界定行政规范在行政诉讼法律适用中的地位。     

空白罪状适用的规范性解释——以前置性规范为中心

空白罪状的适用是以法律、法规的前置性规范判断为基础。前置性规范中"国家规定"的法律位阶应进行限制性解释,不包括操作纪律、习惯等非规范性形式;立足于空白罪状双重违法性的结构,依据缓和的违法性理论,前置性规范必须有违法性要件的明确提示,而不必然有刑事责任条款,对前置性规范适用采取以直接补充为主、二次间接补充为辅的限制原则,对于体系有冲突的应以刑法规范和刑法概念为准,坚持刑法解释的独立性品格;按照刑法的实质解释的原理运用以法益为指导目的的解释方法,法益制约着具体空白刑法条文所参照的前置性规范范围,按照法益同一性规则还可以适用的扩张与限缩解释。前置性规范的变动适用中,应承认前置性规范的刑法间接渊源地位,以实质的罪刑法定原则为判断基准,前置性规范的溯及力应按照从旧兼从轻的适用规则。     

如何刻画法律推理中的事实与规范

法律推理过程包含着权力与利益、应然与实然、确定性与妥当性、客观解释与主观解释等矛盾,法律推理促动法律规范由普遍规则到个案规则适用,法律推理涉及法律事实认定、法律规范识别、法律价值追寻,涉及推理主体关于知识论与实践理性的思考,法律推理的重心由立法领域到司法领域、由法律本体论到方法论、由法律移植到制度理性整合、由宏观论证到微观分析的转向。法律推理呈现内部逻辑强制与外部言说理性互动的特征,已经由法律文本所体现的规范层面转向法律施行的实践层面,形成事实与价值、事实与规范的交互流转。     

Reading,Back in Vogue

正READING is a long cherished tradition in China.A well-educated family is often approvingly referred to as"a home f illed with the fragrance of books."However,after the market economy swept across the country,frenetic changes in lifestyles began to upend certain long-standing social norms.The number of books read per capita in     

Social Norms Theory,Enforcement, and Management Concepts: An Analysis of Local Smoking Ban Ordinances

Although there is substantial research on the consequences of smoking and the economic loss resulting from tobacco use, there is a scarcity of work on the enforcement of smoking ordinances at the local level. As municipalities around the country pass ordinances restricting smoking in public places, research should be conducted to understand enforcement outcomes. This article examines the management concepts being employed by managers in the enforcement of smoking ordinances. This article shows that management concepts are salient in policy enforcement and are employed to manage smoking enforcement ordinances. The theory of social norms is used to explain this phenomenon.     

唐律的使用及《律疏》体制内外“法例”的运作

《律疏》在唐代的使用,有可靠的历史记载与文献证实;有关史书上的案例与《律疏》不符,是因有《刑部格》、议请制度与制敕断罪的影响;《律疏》以《刑统》的形式实际行用于宋代;唐代在《律疏》体制内外都有法例。在不同的法例之间,按照其位阶及性质,相互间可以发生取代、依准、类举、比附及补充等关系,以适应社会法律生活的需求。《律疏》的法律环境抑制了"判例"的产生与推广。     

Democratization,regional integration,and human rights: the case of the ASEAN intergovernmental commission on human rights

Abstract

In the post‐Cold War era, the Association of Southeast Asian Nations (ASEAN) has attempted to maintain and enhance its institutional status in the Asia‐Pacific by increasing its membership and range of activities. ASEAN has tried to assume significant responsibilities for regional security and economic relations through initiatives like the ASEAN Regional Forum (ARF) and the ASEAN Free Trade Area (AFTA) and by demanding a major role in the Asia‐Pacific Economic Cooperation (APEC) forum. This paper critically evaluates ASEAN's attempts at institutional expansion. It argues that ASEAN lacks the political, economic and military resources necessary to play the dominant role that it envisions for itself within the Asia‐Pacific. Its attempts to increase its diplomatic weight by increasing its membership actually have the potential to undermine ASEAN's unity as well as its standing in the world community. The East Asian economic crisis is largely exacerbating ASEAN's inherent weaknesses. If ASEAN is to remain relevant in the twenty‐first century its members need to modify their expectations of the level of international influence that ASEAN can afford them. They must also use ASEAN to directly address issues of dispute between member states. There is little evidence that ASEAN's members are prepared to reform the organization in this way. Therefore, ASEAN is likely to lose its pre‐eminent regional status to other institutions, and may even fade into irrelevance, in the next century.     

Values and Ethics of Global Civil Society Actors: Insights from a Survey and Content Analyses

Abstract

This study examines values, ethics and principles of conduct that underlie activities of global civil society organizations. It uses an international web-based survey, and a content analysis of the codes of conduct for exploring views of global civil society actors active on global issues and participating in global civil society events. The findings of this analysis highlight many similarities in the ways global civil society organizations of different forms and origins define their goals, values, ethical standards and responsibilities. The normative consensus discerned in this research is limited in scope, however. It revolves around a particular, liberal, view of civil society. The study discusses results of the survey and content analyses in light of the current debates on the nature of global civil society and its relation to the system of states and the global market.     

Continuity or Change?: Intervention and Statebuilding after Kosovo

ABSTRACT

The significance of Kosovo can only be understood by first situating the intervention in 1999 and the subsequent statebuilding process in a historical context. While there is a profound difference between 1999 and today, we should not conclude that this means the practice of humanitarian intervention has gone into decline as a result of waning western power. Decisions on intervention at that juncture, as indeed they are today. I conclude by arguing, however, that the theory and practice of statebuilding, has changed markedly since 1999; expectations as to the capacity of international administrations to transform post-conflict societies have declined markedly.