德国近五十年刑事立法述评

自1969年德国刑法大改革至今的五十年间,德国的刑事立法活动非常频繁。在此期间,德国立法机关不但对《刑法典》总则犯罪论部分的规定进行了彻底的修订,而且针对犯罪的法律后果以及刑法分则乃至附属刑法中的诸多罪名进行了持续的改革,在恐怖主义犯罪、妨害公务犯罪、毒品犯罪以及保安监禁等领域尤其如此。整体而言,德国立法者在过往半个世纪中日趋侧重功能主义的积极刑事立法观,导致德国刑法逐步从传统法治国背景下的法益保护法和市民防御法转向以社会控制为主导的国家干预法和社会防卫法,造成了诸多难以与现有法律体系和学说理论相协调的象征性立法。我国应当从德国近五十年的刑事立法中吸收其先进经验,对其中的弊端也要引以为戒。     

‘They treat us like criminals’: urban public spaces and ethnic discrimination in Italy

Mantovan’s article analyses the processes that lead to discrimination against migrants in the public spaces of Italy’s towns. Her analysis is based on a three-year research project conducted in northeastern Italy using mixed methods—ethnographic observation, semi-structured interviews, a press review, an analysis of relevant documentation and data collection—and remaining constantly in touch with research conducted in various Italian cities. Starting from an idea of a city whose evolution is the product of alliances, conflicts, active networks of individuals and their respective competing interests, Mantovan sheds light on how discrimination against immigrants in Italy’s urban public spaces is the result of a process of social construction implemented by a number of social actors (journalists, citizens’ committees, politicians and police forces) who represent the visible presence of migrants in these public spaces as deviant and unlawful, especially if they are undocumented immigrants and/or of low socio-economic status. She also argues for the importance of taking into consideration the contribution of economic and political dynamics, both global and national, to the generation of these phenomena by interacting with those at the local level.     

Autocratic legitimation in Iran: Ali Khamenei’s discourse on regime “insiders” and “outsiders”

The article analyses Ali Khamenei’s discourse on insiders and outsiders in the Islamic Republic of Iran, arguing that it shows the leader of an electoral revolutionary regime striving to counter elite fragmentation and growing democratic demands. It studies identity demarcation as a tool of autocratic legitimation. In a political system where the possibility to access political positions depends on supporting a belief-system, all cadres share a basic identity, which rulers can exploit to draw boundaries between “us” and “them”. The analysis reveals how Iran’s leader capitalizes on the existence of an insider-outsider divide to promote ideas about an imagined “we” of the regime. The “we” is portrayed as an Islamic we, fully committed to his rule. The article maintains that Khamenei developed this discourse in response to the challenge of the Iranian reform movement. It analyses, first, the context in which the discourse emerged and, second, the discursive strategy itself, to substantiate the claim. It concludes that the discourse had two essential aims in the containment (1997–2003) and crushing (2009–2010) of the pro-democracy reformist and Green movements: to de-legitimate Khamenei’s opponents through othering and to legitimate the counter-mobilization of repressive agents.     

Preventing Dysfunction and Improving Policy Advice: The Role of Intra‐Departmental Boundary Spanners

It is well established in the public management literature that boundary spanners – people or groups that work across departments or sectors – are critical to the success of whole of government and joined‐up working. In studying recent unprecedented change to central government agencies in the Australian context, our research identified that intra‐departmental boundary spanners also play a critical role in the functioning of government departments, particularly during restructuring. Although most contemporary literature in public management concentrates on boundaries across formal organisational entities (departments, agencies, sectors), boundaries also exist within departments. Our research has found that without dedicated intra‐departmental boundary spanners, significant role confusion and dysfunctional practices arise. In turn, this has serious implications for the quality of policy advice given to Cabinet. Further research needs to be undertaken into both the role of intra‐departmental boundary spanners and how to nurture and manage the practice of intra‐departmental boundary spanners. This is especially the case if changes in Australia represent a fundamental shift more broadly in the way central government agencies operate.     

我国网络言论自由规制问题初探

从1994年正式接入互联网至今,我国互联网发展迅速,已成为人们获取各类信息和发表言论的重要途径。在网络技术不断发展的背景下,我国通过法律划定了网络言论的边界,网络言论的法律规制不但没有扼杀言论自由,反而成为网络言论自由健康发展的有力保障。当然,我国的网络言论的法律规制也存在着一定的问题,对此,笔者提出了一些思考和建议。     

Trump the antisemantic,and the boundaries of populism

ABSTRACT

In this article I consider Donald Trump as an “antisemantic” president, and link antisemanticism to broader forms of populism. Drawing on Stuart Hall’s analysis of Thatcherism, I explore the political and discursive domains as intrinsically linked in the Trumpian moment. Second, I turn to a theory of the antisemantic, showing its difference from the Orwellian universe. Where the Orwellian model depends on the inversion of meanings, the Trumpian paradigm (“Truth isn’t truth”) attacks the foundations of meaning itself. In the Trumpian age the internet also acts as a dark multiplier, thinning out meaning through its distortions and profusion. As counterpart to these patterns, I show how the antisemantic rests on certain symbolic fixities, especially around boundaries and the “uber” symbol of the wall. I end with some notes on how to reconstruct a sense of accountability in meaning, and to think of boundaries that are transitive and generative rather than singular and walled.     

Ambivalence About Equality in the United States or, Did Tocqueville Get it Wrong and Why Does that Matter?

Alexis de Tocqueville believed that “democratic peoples’... passion for equality is ardent, insatiable, eternal, and invincible.” This article examines whether and under what conditions residents of the United States demonstrate such a commitment to equality. I show that at many points in history, Americans have indeed chosen to move toward greater justice and less oppression; however, there are clear limits to their passion for equality. White Americans endorse less social, political, and economic equality than do African Americans, but even the latter often resist equality for groups that they perceive to be threats, or for behaviors that threaten strong social or moral norms. The article discusses implications for political activists of these patterns of support for and resistance to greater equality, and suggests strategies for overcoming oppression and promoting justice.     

Patricia Williams: Inflecting Critical Race Theory

Critical Race Theory (C.R.T.) has developed out of a deep dissatisfaction that many black legal scholars in the U.S. felt with liberal civil rights discourse, a discourse premised upon the ideals of assimilation, ‘colour-blindness’ and integration. In addition, the emergence of the Critical Legal Studies movement provided Critical Race theorists with an innovative lexicon and practice which allowed them to develop a critique of traditional race analysis and U.S. law. Patricia Williams has played a key role in the formation of the C.R.T. movement and is concerned with many of the C.R.T. themes: the understanding that traditional civil rights law has benefited whites more than blacks, the ‘call to context’, and the critique of liberalism by the assertion that racism is routine and not aberrational. Following the C.R.T. belief that form and substance are connected, Williams has also extended the boundaries of another C.R.T. theme by (largely) eschewing the conventional genre of legal writing in much of her work, including her two books, The Alchemy of Race and Rights and The Rooster's Egg. This was one of the issues Williams discussed in an interview that commenced when she visited Britain in 1997 to deliver the Reith Lectures. This revised version was published online in August 2006 with corrections to the Cover Date.     

仪式与司法建构

文章从人类学的仪式理论与实践出发,引入仪式在日常生活和在司法领域的表现及作用,从而阐明仪式对立统一的存在价值。其次,从陪审制度这一现代司法仪式的阻断功能、辅助司法权威功能以及稳定司法功能进行全景式考察,阐述陪审制度借助仪式这一载体而体现的独特价值。     

法定犯中行政前置性要件的法理基础与制度构造

行政前置性要件作为刑法分则个罪中的限制性要件,强调行政处理优先性,包含着以刑罚处罚确保行政执法效果的制度期待,是刑法谦抑性的新表达。在法定犯日趋增多的时代背景下,刑法修正中的犯罪化不可避免,单一强调犯罪化或非犯罪化均存在较大副作用,在个罪中设置行政前置性要件,重视法益恢复在阻却犯罪成立中的积极价值,有利于追寻犯罪化与非犯罪化的最佳平衡点。行政前置性要件的法理基础在于部分犯罪存在法益侵害待定状态。立法者在增设法定犯时,若认为该犯罪存在法益侵害待定状态,并且不直接涉及人身法益,当优先考虑设置行政前置性要件。