职权为什么必须被行使?——为"职权"的法律意义而辩

在我国的法理学中,法院等国家机关的职权被认为具有"必须被行使"这个含义,理由就是"不行使就是违反法定义务、要受到制裁"。这种解释的背后隐藏了一种独立于法律的事实意义上的国家(机关)观念,一方面只是一种职权的政治学、社会学概念,另一方面又与现今普遍被接受的法治理念相悖。因此,需要一种符合法治理念的国家观,并以此为基础重新解释职权的法律性质,确定一种职权的法律概念。     

论民间法的社会权力基础

民间法以社会权力为基础,国家法以国家权力为保障。民间法与国家法共同起源于原始习惯,二者的互动与互补既符合历史的逻辑,又符合事物发展的内在规律。社会权力是指以特定范围内的社会主体的同意为基础、以契约为表现形式,并受到一定程度程序控制的社会强制力,具有“同意性”、“契约性”和“多元性”特点。社会权力视角的民间法具有权利与权力的双重属性,具有“冷暴力”、“文化性”和“族性”特征。社会权力的变迁必然引发民间法的发展,社会权力是民间法实效的重要基础,应为民间法与国家法沟通的理性平台。     

Negotiating the ‘state of exception’: Gypsies' encounter with the judiciary in Germany and Italy, 1860–1914

The tensions between judicial and executive authorities regarding so-called Gypsies in fin de siècle Germany and Italy reveals an inherent contradiction between the universalist dictates of the modern Rechtsstaat and the requirements of building a national state free of perceived outsiders. The frustration of executive authorities with judicial authorities who insisted on protecting the universalist individual enshrined in law pushed executive authorities to utilize the ‘state of exception' to achieve their vision of the national community. Rather than choosing to create illiberal laws that would expressly exclude Gypsies from the national body, and would resolve the tension with the judiciary, authorities in Germany and Italy instead chose to go around the law by treating Gypsies as an exception not subject to the law. The state of exception not only deprived those labelled as Gypsies of a method of resistance, since many were able to use unwilling courts to protect them from over-zealous executive authorities, but also created a group of stateless people, persecuted and lacking basic human rights.     

Endogenous risk and protection premiums

Endogenous risk implies an individual perceives he can influence the likelihood that a state of nature will occur. To add structure to endogenous risk models, I define a protection premium for reduced uncertainty about protection efficiency when a stochastic variable enters the probability functionp(x) rather than the utility function. For a binary lottery, a measure of aversion of uncertain protection efficiency(x) =-p(x)/p(x) is defined to unambiguously determine the effects of increased risk on an individual's voluntary contribution to public good supply earmarked to reduce the probability of an undesirable state. Finally, I examine the protection premium in ann-state discrete lottery and when uncertainty exists in both the probability and utility function.     

俄罗斯的市民社会诉求与"法治国家"定位

俄罗斯"法治国家"的理论路径是与俄罗斯社会结构转型进程相回应的,并以市民社会为其逻辑起点,即认为市民社会构成了法治国家的社会基础;市民社会的自由、权利和秩序诉求提供了法治国家的价值原则;公民法律意识是法治国家的重要条件和保证.这不仅反映了俄罗斯社会结构转型条件下的法治要求和特有关怀,也反映了俄罗斯国家控制能力衰弱和市民社会"畸变"背景下的法律秩序要求.文章指出,要推进法治,不仅要推进国家和市民社会二元化进程,更重要的是确立二者良性互动关系,而不可简单移植和照搬西方.     

"法制不统一国家法律的适用"的立法设计与论证

法院在审理涉外民事案件时,经常会面临法制不统一国家法律的适用问题.在这方面,我国立法无明确规定,存在立法上的空白.为配合我国正在进行"涉外民事关系的法律适用法"的立法,文章对其中的"法制不统一国家法律的适用"条文进行了设计,并从立法和实践的角度,对"法制不统一国家"的内涵、法制不统一国家法律的适用方法等问题作了说明和论证.     

Women Reconciling Paid and Unpaid Work in a Confucian Welfare State: The Case of South Korea

The participation of married women in the labour market has been increasing since industrialization in the 1960s in Korea; in 1999 it overtook that of unmarried women. This raises the issue of how women reconcile paid and unpaid work and how state policy responds to this issue. In Korea, there have been numerous policy reforms designed to support working women in combining work and family life. For example, a parental leave scheme was introduced in 1995 and maternity benefits were also introduced in 2001. However, it is doubtful whether these policies can be effective in practice in Korea, where Confucian traditions in respect of women's roles remain strong. Confucian tradition has long influenced Korean society culturally and socially. Although Korean society today is not as Confucian as in the past, some traditions still remain strong, particularly with regard to the family: for example filial piety, seniority, the married woman's responsibility for her parents‐in‐law. This paper will argue that Confucian tradition makes for difficulties in Korean women's experiences of reconciling paid and unpaid work and also affects the formation of state policy. The paper explores the impact of the Confucian welfare regimes on Korean women's experience of reconciling paid and unpaid care work, and questions the gendered characteristics of the Confucian welfare state.     

Personal Security and the 'Right' to Protection

Welfare organizations and social services deal with issues of personal security. They are involved in risk assessment and in the protection of individuals and families. However, their mission in this domain is not defined, and its boundaries are not set. The article discusses the right to personal security. The duty of the state to guarantee this right is stated by international declarations and conventions that were ratified by the United Kingdom, as well as the European Convention on Human Rights that was adopted into domestic English law. In the application of the right to personal security, and the state's duty to secure this right, two independent processes are taking place. First, in the United Kingdom, the English courts are reluctant to recognize an affirmative right to personal security and to impose on state and public agencies a duty to secure this right. Second, as in many other service areas, this duty is rendered to the community. It is vital for the social services to discuss this duty, especially when they are called to vouch for the personal security of individuals and families in the community.     

Indigenous water rights in Australia

Indigenous rights in Australia have undergone enormous transition since the groundbreaking decision in Mabo vs. Queensland in the Australian High Court. This paper explores these changes with a particular emphasis on Aboriginal water rights—an important, and more complicated, corollary to land rights. Mabo opened many possibilities that Aboriginals could claim water rights for everything from irrigation to fishing and spiritual uses. Since 2000 claims of this nature have been made in the federal court system and have challenged the total scope of water law on this the driest inhabited continent on earth. Water law in Australia is primarily a function of state government and these policies have had differential impact on Aboriginal rights which will be explored in this paper.     

A model to support the assessment of subjective probabilities

Conclusions The purpose of this article has been to provide a new method for the determination of subjective probabilities. The kind of support which is suggested for the assessment process has several interesting properties. Constructed in accordance with the Savage theory the procedure considers a preference structure on the space of the possible actions A or on a suitably chosen space A ^* as its basis. This structure will be attained by pairwise comparison of the elements a _i A (or a _i ^*A ^*). It may be incomplete and inconsistent. A linear programming approach will use this information to derive numerical probabilities which are in accordance with the stated preference judgments. Therefore, it avoids the difficulties which arise when the judge has to assign the numerical values to the possible states of nature. On the other hand, this method presents the advantage of taking into consideration all relevant a priori information because of its systematic judgment process. Another important element is given by the use of coefficients which express the judge's confidence in the stated comparisons. Further relevance is added to the procedure by the relatively small consumption of time and work to report the judgments even in complex situations, and by the renunciation of any methodological knowledge on the part of the judges.This study was financed by a research grant of the Deutsche Forschungsgemeinschaft (DFG).     

Knots and blanks: The pragmatic foundation of logical principles

Logical principles, in particular the law of noncontradiction and the law of exclusion of middle term, play different roles at different levels of discourse: valid formulae in an axiomatic calculus, methodological requirements (of consistency and completeness) for formalized systems. When postulated as formal laws, —pvp and —(p·—p), they are totally interdefinable and equivalent as well (DeMorgan's transformations are proof of this). If postulated as methodological requirements, the principles are not equivalent, although they could still be said in some sense to be interdefinable (the existence of consistent yet incomplete systems shows that the requirements are not equivalent; still, completeness of a system can be defined in terms of consistency of another system which keeps a definite relationship with the first one).There exists a third level of discourse: scientific praxis. At this level, the principles come even farther apart: they neither have the same logical value nor is one definable in terms of the other. However, they keep a family resemblance which justifies our dealing with them jointly. Let us call the principles at this level pragmatic imperatives. They deal with paradoxes, which are of two types: knots (conflicts) and blanks (gaps in the scientific pattern). The left-hand pragmatic imperative says: Be intolerant with knots, try to remove (dissolve) them. The right-hand pragmatic imperative says: Try to remove (fill) all blanks. The knot-removing and the blank-dissolving imperatives are prior to and more important than the laws of noncontradiction and excluded middle and the requirements of consistency and completeness. Logical principles are not prime categories: pragmatic imperatives are primordial.     

An Analysis of the Legal Attributes of Human Dignity

Human dignity arises from the dignity and respect people enjoy as members of the human community. The law decrees that human dignity does not involve approbation of someone’s external qualities; rather, it is the acknowledgement of equal status. Human dignity is not determined by positive law, but is above positive law, belonging to the category of preexistent norms that exist independent of positive law. Such norms form the basis for integrating legal systems. These permanent norms cannot be amended at will; they represent the general ethical principles of modern law. Human dignity is not a matter of rights or basic rights; rather, it represents one’s position in society and equal legal status before the law. Many normative laws in China directly define humanity dignity, and affirm the guaranteeing of human dignity as the primary task of the state. Human dignity is related to people’s survival and livelihood; thus a material foundation for the realization of dignity can be provided by providing material assistance and improving public services.     

The time frame problem: the law, social construction, and the sciences

Among our official noblest virtues are truth and justice. In the sciences, officially, truth overrides every other virtue. In the law, officially, justice likewise overrides. That is neither to deny that justice should be tempered by mercy, nor that truth should be qualified by wisdom. Any discussion of law and the sciences is potentially high philosophy, the meeting ground of truth and justice. But there are also more practical concerns. How should scientific information and advice be used in the law courts? There is now a rather staid but thoroughly solid assessment of the current state of play in the United States Federal Court systems, Foster and Huber’s(1997) Judging Science: Scientific Knowledge and the Federal Courts. Far more challenging to the philosopher, the scientist and the student of jurisprudence is Sheila Jasanoff’s(1995) Science at the Bar because she enters current debates as a professed social constructionist, with a distinguished career of investigating science and public policy (Jasanoff and Jasanoff).     

法治的实质:自由与秩序的动态平衡

人是自由的存在物 ,也是遵循规则的存在物。自由和秩序的需求源于人类本性 ,人的个体性彰显为自由 ,人的社会性体现为秩序。法治是法律运行良好的“法大于权”的生活方式 ,法治的核心价值是自由 ,法治的基础价值是秩序。法治的自由与秩序价值难以在静态中达到平衡 ,法治的实质是寻求自由与秩序的动态平衡     

法律意义标志的诠释学审查

法律是人类通过规则所构筑的意义体系。然而 ,当人们对法律意义进行诠释时 ,所得出的法律意义每每大相径庭。这反映了在法律意义的理解上 ,“只要有理解 ,理解便会不同”的道理。那么 ,如何寻求法律的意义 :有人主张通过追问法律的合法性寻求其意义 ;有人主张通过品读立法者意志寻求其意义 ;有人主张法律的意义就在于法律的文本 ;还有人主张法律的意义在于人们通过对法律的对话而形成关于法律共识。文章站在诠释学的立场上 ,对如上法律的意义标志作了学理解说 ,以证成法律意义标志多元的诠释学理由     

多元权利基础、公权力权威与良法之治

推进中国法治进程 ,并不仅仅是法律制度的简单植入或法律体系的建构 ,也不仅仅是“依法治理”对秩序的促动 ,而关键在于重构国家与市民社会的良性互动关系。即大力推进市民社会自主性 ,以多元社会权利来平衡和制约国家权力 ,缩减国家权力职能和建立其合法性权威 ,并弘扬正义法精神以实现良法之治。只有这样 ,以权力制约和权利保障为核心取向的法治秩序才能最终确立起来。     

日本徂徕学派对儒法"人情论"的继承与超越

就观念形态的主调而言,日本的近代化,自始至终都是一个"脱儒"的过程.日本徂徕学派对儒法"人情论"所做的近代转换工作,则可视为这一过程的中心和枢纽.徂徕学派对儒法"人情论"取长补短、融为一炉的改造,最终形成了具有近代意义的政治优位、公私分治、政教分离的思想,为日本的早期近代化铺平了道路.     

司法过程中的利益衡量批判

在司法过程中,价值衡量是法官填补法律漏洞、作出正确裁判所必须依赖的重要方法。然而,长久以来,价值衡量被简化为利益衡量,并在许多法学论著中取得了支配地位。文章意在指出,这种简化实质上是一种将权利利益化的庸俗产物,它对于法治和司法正义必然产生损害,指出这一实质,并作出“权利论”的批判,有助于维护法治之真谛并在司法实践中推动它的实现。