Institutionalizing shame: The effect of Human Rights Committee rulings on abuse, 1981-2007

What motivates compliance with “toothless” international human rights norms? This article analyzes the effectiveness of procedures that allow individuals to petition an international human rights body, the Human Rights Committee, alleging state abuse of their treaty-protected rights under the International Covenant on Civil and Political Rights. Using methodological tools that account for selection biases arising from a country’s decision to authorize petitions and its subsequent propensity to be targeted by abuse claims, I find that basic civil rights and religious freedoms improved after states were found to have violated their human rights treaty obligations, whereas physical integrity abuses such as disappearances and extrajudicial killing were somewhat more impervious to change. These findings are interpreted with reference to the concept of “coupling” as borrowed from organizational sociology, and their implications for treaty design and enforcement are considered.     

表达自由的法律地位

现代许多民主国家的宪法,都将言论自由作为一项重要的公民权利予以保护。在一些国际和地区人权条约中,也制定了细密的表达自由之人权标准。这些规定既是对一种普世价值的认同,也为制度建设,尤其是法律制度建设指明了方向。本文依据中国现行宪法和其他法律与表达自由有关的规定,阐明了表达自由在中国现有法律体系中的地位。在人权入宪且中国政府已经签署了《公民权利和政治权利国际公约》的情况下,文章还介绍了表达自由的人权标准。     

物权与债权的二元权利体系浅析

物权与债权是民法财产体系中的两大财产权。在我国物权法制定的过程中,首要解决的是物权与债权的区分问题,这不仅关系到民法典日后物权编的修订,更多的是关系到物权法体系的构建。物权与债权相伴而存,虽有紧密的联系,但在性质、客体、内容、设定、期限上又体现出来及其差异化的特点。本文重点对这两类权利进行比较以及讨论物权债权化或债权物权化之优化的问题。物权与债权的区分与融合,有助于我们正确对两者进行类型化整理,有助于立法的完善和民法学研究中复杂问题的解决。     

Too much of a good thing? Economic growth and human rights, 1960 to 2010

Despite widespread belief in the benefits of economic growth, some scholars emphasize the potentially negative consequences of growth—and especially rapid growth—for social and political outcomes. Using data for 149 countries between 1960 and 2010, I analyze the effect of economic growth on fundamental human rights conditions. Dynamic random-effects and two-way fixed-effects estimators, both with and without instrumental variables, yield several conclusions. First, economic growth is causally prior to rights conditions. Second, economic growth has a modest positive effect on human rights, albeit with diminishing returns at high growth rates. Third, low-income countries account for much of this relationship: growth improves rights conditions for most low-income countries, but extremely rapid growth is inimical. Growth has little effect among middle-income countries, while for high-income countries the relationship is positive but not robust. I bring these findings to bear on long-standing debates between proponents and critics of modernization theory.     

法学视野中面向权利的权力正当性论证 ——由《权利的成本》展开

《权利的成本》揭示权利依赖于权力的秘密,权利的成本表现为权力所掌控的预算资源,民众以缴纳税捐的方式获取权力对权利的确认与保护,本质上是一种互助式的公共保险机制。所有权利都是积极权利,权力赋予权利人对抗他者的法律效力,权力在权利的实践中无法缺位,自由主义对权力的成见不合时宜。权力从对权利的保障中获得了丰厚的回报,不仅证成其正当性价值,还因正外部性的产生增强了自身的能力,权利与权力可以形成互相促进的良性循环。权力保障权利价值的实现需要有效的权力机关。在稀缺公共资源的现实条件下,权力中的权利保障职能具有预算优先性,应当在此预算领域以支定收,由权利保障的预算支出需求决定国民的税负。     

论人权规范

人权是宪法研究中的永恒话题。人权价值作为立宪主义的价值核心,往往表现在宪法文本和宪法规范之中。人权规范的本质即是人权价值的规范化表达、人权价值的法定性存在。人权规范的发展主要经过了三个阶段:第一,从理论学说到人权宣言阶段;第二,从人权宣言到人权立法阶段;第三,从国内立法到国际立法阶段。人权规范在宪法文本中往往具体表现为人权条款。我国宪法文本中的人权条款一般是指2004年修宪时新增加的国家尊重和保障人权条款。     

Inequality in the family: The institutional aspects of women’s earning contribution

This paper examines the effect of employment-supportive policies and arrangements on women’s economic contribution to their family. Using samples of working-age couples in 21 countries we employ multilevel modeling to separate the effects of household and country-level variables on earnings. We distinguish two types of relevant contextual factors: those that support women’s employment while preserving their domestic roles and those that potentially reduce intra-family economic inequalities by allowing women to allocate more of their time to paid employment. The findings suggest that all employment-supportive policies and arrangements increase women’s relative contribution to the household income through their effect on female labor force participation. Among dual-earner families, however, higher rates of childcare facilities increase women’s contribution, while long maternity leave and part-time employment decrease it. These tendencies are more pronounced among mothers.     

论社会权可诉性的宪政之路

社会权作为基本权利,不仅具有主观权属性,也具有客观法属性,这为社会权可诉性的＂司法与准司法＂路径提供了宪法依据。宪法诉讼是社会权在宪法层面可诉性的本源路径,我国宪法诉讼应采用＂最低限度主义＂,通过运用宪法明示性条款直接保护社会权、通过审判发现宪法中的默示性社会权等方式缓慢稳妥地促进社会权的司法保护。宪法解释是中国语境下社会权可诉性的路径,我国宪法解释宜采用＂原旨主义＂解释方式。在宪法层面,通过对宪法条文涵义与国家政策的宪法解释来保护社会权;在民法层面,通过对基本权利的第三人效力的解释来保护社会权;在行政诉讼法层面,通过肯定性行政救济手段与扩大行政诉讼法的受案范围来保护社会权。     

论第三人侵害债权的基本特征和表现形态

第三人侵害债权的基本特征是：主观上,故意是原则,过失为例外;行为主体主要是债的关系以外的第三人,但在第三人与债务人恶意通谋实施旨在侵害债权人债权的行为时,债务人亦可成为共同主体;行为客体是他人的合法债权：该制度在功能和作用上只能是一种补充性的法律制度。其表现形态分为直接侵害和间接侵害两种。直接侵害债权分为：因第：三人的行为直接侵害债权,致使债权丧失或实现困难的情形;第三人处分或行使债权,直接导致债权消灭的情形。间接侵害债权分为：实体侵害、引诱侵害和通谋侵害三类。     

Methodological decisions and the evaluation of possible effects of different family structures on children: The new family structures survey (NFSS)

Every social science researcher must make a number of methodological decisions when planning and implementing research projects. Each such decision carries with it both advantages and limitations. The decisions faced and made by Regnerus (2012) are discussed here in the wider context of social science literature regarding same-sex parenting. Even though the apparent outcomes of Regnerus’s study were unpopular, the methodological decisions he made in the design and implementation of the New Family Structures Survey were not uncommon among social scientists, including many progressive, gay and lesbian scholars. These decisions and the research they produced deserve considerable and continued discussion, but criticisms of the underlying ethics and professionalism are misplaced because nearly every methodological decision that was made has ample precedents in research published by many other credible and distinguished scholars.     

At the intersection of self and other: English language ability and immigrant labor market outcomes

New Immigrant Survey 2003 data are used to consider the intersection between self- and other’s assessments of English proficiency. Our findings yield two important results. First, individuals who over- or under-estimate their English proficiency experience worse labor market outcomes than those whose positive self-evaluations coincide with the interviewer’s. Second, our analysis of respondents with a concordant self and interviewer assessment suggests higher returns to English proficiency than when using self-assessment. We argue that, although self-assessed language proficiency dominates the literature on immigrants’ well-being, this measure omits an important additional factor concerning immigrant self-perception and its concordance with the perceptions of others.     

Response effects to attitudinal questions about domestic violence against women: A comparative perspective

According to the national Demographic and Health Surveys (DHS), between 10% and 90% of women in poorer countries agree that domestic violence against women is justified. Such wide variation in women’s responses raises concerns about the comparability of the underlying attitudinal question, and the validity of comparative research that assumes comparability. Using 67 DHS conducted in 48 countries between 1995 and 2007, we explored whether cross-national variation in women’s affirmative responses to this question were explained by cross-national variation in survey design, socioeconomic conditions, or both. Variation in survey design had considerable predictive power and accounted for a non-trivial amount of the variance in women’s affirmative responses. Including the survey-design variables also modestly altered associations of the outcome with structural variables of interest in comparative studies. These findings offer insights about future analyses and data collections on women’s attitudes about domestic violence against women.     

女性劳动者就业歧视的法律应对研究

文章以我国《刑事诉讼法》的修改和《公民权利与政治权利国际公约》比较为视角,论述了我国刑事诉讼法修改后在人权保障方面的进步,同时指出了修改后的刑事诉讼法与《公民权利与政治权利国际公约》之间仍存在的差距。重点介绍了辩护制度和强制措施制度的改进。     

Buffering income loss due to unemployment: Family and welfare state influences on income after job loss in the United States and western Germany

This article analyzes how the family and the welfare state influence household income trajectories after job loss in the United States and in western Germany. Drawing on panel data from the Panel Study of Income Dynamics (PSID) and the German Socio-Economic Panel (GSOEP), I study the income buffering effects of the family and the welfare state in the short an in the long run after job loss. I demonstrate that household income trajectories after job loss in the two countries are similar for couple households. However, men in the United States rely relatively more on family resources to overcome income loss, whereas German men’s incomes are secured mostly by the welfare state. Women’s unemployment in both countries is mainly buffered by their partners’ higher earnings. Because single households have no access to family support, they face much higher losses in the United States than in Germany. I also show that the more generous German welfare state triggers less private self-help in the form of increased labor force participation on the part of women when their partners lose their jobs. Over time, the family has become more important in buffering incomes after job loss in the United States which smoothed men’s and roughened women’s income trajectories in couple households. In Germany, worsening re-employment chances increased income losses in the long run after job loss.     

Social mobility in 20 modern societies: The role of economic and political context

It is commonly argued that social mobility rates are influenced by economic and political conditions. Nevertheless, research on this issue has tended to be hindered by two limitations that make it difficult to draw strong conclusions about contextual effects: (1) seldom have country-level and individual-level influences been tested simultaneously, and (2) only rarely have data more recent than the 1970s been employed. We improve on previous research by employing multilevel models fitted to relatively recent survey data collected from 20 modern societies by the International Social Survey Program (ISSP) and national-level characteristics derived from various official sources. Our findings demonstrate systematic cross-national variation in the association between the occupational status of respondents and their fathers. Consistent with the industrialization thesis, this variation is positively associated with per-capita GDP, suggesting that more affluent nations are characterized by more open and fluid stratification structures. Our results also suggest the importance of political regimes and migration for social mobility. In contrast, economic inequality appears to explain very little of the cross-national variation in mobility rates.     

Deriving equity from expectations: A cross-cultural evaluation

This paper develops and evaluates a new model for predicting just rewards. The model produces point predictions for individual just rewards based on status characteristics and the expected value of a valued good. The equity model borrows from Berger and colleagues’ (1998) reward expectations theory the ability to define different reward expectations. Drawing from Melamed and Walker’s (2010) recent generalization of the mathematics of reward expectations theory, I illustrate how the model generates a continuous distribution of just rewards. The general model is applied to data from thirteen countries using the International Social Justice Project. The results illustrate the predictive power of the model using data from over 10,000 respondents. Implications and future directions are discussed.     

和谐社会公民政治参与权的法治保障

公民政治参与权是指公民依法享有的由宪法和法律确认,受宪法和法律保障和限制,通过一定方式参与国家政治活动,并影响国家政治构成、决策、进程、结果,而不受他人非法干涉、侵犯和剥夺的权利。我国已形成保障公民政治参与权的法律制度,但也存在一些不足。进一步加强社会主义法治建设,对扩大公民有序政治参与,保障人民当家作主,建设法治国家,构建和谐社会都具有十分重要意义。     

Participation in international human rights NGOs: The effect of democracy and state capacity

This study examines the effect of the state on participation in human rights international non-governmental organizations (INGOs) from 1966 through 2006, using random effects negative binomial models. Civic participation in human rights INGOs is not responsive to human rights abuses of the state, but is affected by the institutional environment provided by the state. Two intertwined dimensions within the state, democracy and state capacity, are found to be important in explaining cross-national variation in this participation. Strong state capacity magnifies the effect of democracy. A strong democratic state generates the most favorable condition. A strong but authoritarian state, however, is the most unfavorable, because it has both the motive and the capacity to restrain its citizens’ global civic engagement. In contrast, an authoritarian but weak state lacks adequate capacity to intervene, and thus tolerates more participation than its strong counterpart. Over time differential participation across different types of states has not been diminished. This study reveals the role of the state in mediating between local citizens and global civil society, and develops a state-centered explanation for unequal participation in human rights INGOs across countries.     

公安机关侦查权的诉讼程序控制

当今世界上,任何国家都存在警察侵犯人权的问题,而警察执法过程中在程序这一环节最易出现侵权问题。在司法实践中,公安机关行使侦查的权力时有扩张,甚至滥用,造成对犯罪嫌疑人权利的侵犯,因此,有必要进一步规范公安机关侦查权的诉讼程序控制,使侦查行为依法进行,从而加强在刑事侦查阶段的人权保障。     

完善我国人权保障的制度构建

人权保障是宪政的终极价值取向,2004年3月14日,"国家尊重和保障人权"载入宪法,实现了近代以来我国宪政价值追求的历史性改变,揭开了我国人权保障和发展事业的新的篇章。但价值取向的改变仅仅是我国人权保障建设的良好的起点,我们要通过完善宪法、政治制度等各方面,实现对人权的保障。