论所有权的自由与限制

所有权对于公民的财产权利甚至整个法权具有重要意义。近代民法一直强调所有权行使的绝对自由,忽略了所有权应该受到的社会公益限制,其结果是使自由走向了反面。为克服所有权绝对自由带来的负面影响,现代民法开始由权利本位转向社会本位,逐步形成了所有权的社会化思潮,强调所有权的行使应该以尊重和维护社会公益为前提。但是由于社会公益的概念比较宽泛,范围难以确定,为了防止有人以公益之名谋私益之实,应该对社会公共利益的界定确立实体标准和程序标准,以解决因社会公共利益的界定产生的争议,寻求社会公益与个人私益的平衡,维护公民个人的实体权利。     

Social deontics: A nano‐level approach to human power play

The notion of “deontic rights”—the capacity of an individual to determine action—is described as a tool to analyze human power plays in the turn‐by‐turn unfolding of social interaction. Drawing on various bodies of literature, the paper portrays the organization of the adjacency‐pair sequence as the key locus of negotiation over deontic rights. How such negotiations happen in practice is also considered. Two deontic patterns instantiating themselves in sequential relations—deontic congruence and deontic incongruence—are discussed. Negotiations of deontic rights are suggested to take place specifically in and through three different forms of deontic incongruence, each of which involves a subtle mismatch between the claims of deontic rights of the first speaker and the recipient's treatment of these claims. These implicit power plays easily escape the eye and are therefore difficult to reflect upon and counteract by the participants themselves, which makes a thorough understanding of these mechanisms important.     

Individual rights and collective obligation. Compulsory intervention towards substance abusers in Norwegian social law

This article focuses on an important duality in the modern welfare state: the will to help our fellow citizens through institutionalized welfare policies, and the danger of violating individual liberty and integrity. Individual rights of self-determination and integrity are important values of the liberal constitutional government (the Rechtstaat). Our collective ethical obligation to help those in need is an important value of the welfare state. With respect to compulsory intervention towards adult and under-age substance abusers, the possible tensions between these values are particularly visible. The legal foundation for such efforts in Norwegian social law is discussed with regard to different ethical and moral principles. The main questions are how compulsory interventions are justified and how different principles are weighted in positive law. The ethical principles of collective obligation and the moral principle of individual rights are differently balanced in the Child Care Service Act and the Social Service Act. Both acts, however, expose the problematic combination of solving social problems by the use of force and securing individual autonomy and integrity.     

孙中山晚年政治思想的内在矛盾

孙中山晚年的民主宪政追求与他的一个党、一个主义的主张之间存在着明显的矛盾 ,他的直接民权理论与排斥个人自由的理念也难以相容。他期望用集权独裁的方式实现民主是不可能成功的。孙中山没有解决的政治难题 ,对所有东方民主革命家都是一个难以索解的难题     

本真性和公共领域:查尔斯·泰勒的自由社会观

本文围绕查尔斯·泰勒的两篇文章"消极自由有什么错" "自由主义政治与公共领域",以及泰勒与哈贝马斯在2009年的对话,来阐释他对自由主义的修正。这两篇文章相互呼应,前一篇阐释作为道德心理学的个人本真性,后一篇阐释使（个人或群体的）本真性得以充分发挥的多元公共领域。公共领域是市民社会的核心环节,而市民社会是与自由主义联系在一起的自由社会的主要形式。在对自由社会的阐释中,泰勒总结了修正自由主义的中庸观：在个人自由、自治和基于平等权利的规则之间寻求平衡和相互支持。在2009年与哈贝马斯的对话中他进而指出,宗教是多元公共领域中的议题之一。这种历史观基于他对韦伯观点的修正而形成,而此历史观对当前中国的处境有启发价值。     

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.     

Religious freedom and gender equality in India

After India gained independence in 1947, the country's leaders promised its diverse constituents citizenship rights that extended across religion, gender, and caste. Distinct from its previous British rule, India's constitutional law guarantees citizens the right to religious freedom and associated cultural practices, and prohibits gender and caste‐based discrimination. However, in ensuring freedom of religion, the constitution also effectively affirms gender inequality through patriarchal religious and cultural practices. This article examines how the constitutional rights of religious freedom and gender equality have been negotiated among each other in contemporary Indian society. I draw upon three landmark Indian Supreme Court cases that navigate the terrain of affirming both women's civic rights and religious freedom. Findings suggest that the Supreme Court is working toward a more inclusive definition of citizenship, particularly one which supports women's civic rights within the context of religious personal law.     

‘As a slave woman and as a mother’: women and the abolition of slavery in Havana and Rio de Janeiro*

Abstract

This article explores how enslaved and freedwomen in Rio de Janeiro and Havana, the capital cities of the Americas' last two slaveholding territories, played a crucial and specific part in helping speed and shape the gradual emancipation processes that unfolded simultaneously in each context during the 1870s and 1880s. In each city, women were at the front line of legal battles for freedom waged by the enslaved and their freed relatives. The article suggests several reasons why. First, in both Brazil and Cuba, the abolition process was shaped by ‘free womb’ laws which, along with other subsequent legislation, created specific new opportunities for women to make legal claims on the basis of motherhood. Second, such petitions chimed not only with official legal stipulations but also with broader Atlantic anti-slavery rhetoric that sought emotive responses to the plight of slaves and appealed particularly to specific notions about maternal love. Third, these (ex-)enslaved women's struggles were shaped by their own understandings of the significances of freedom and of motherhood, and by their daily lives in these two Atlantic port cities, where women had long been a significant presence in each city's population and economic and cultural life. Looking beyond their ‘individual’ claims for freedom reveals how such claims emerged from a collective context of proximity, cohabitation and exchange of information and help. Despite the major differences between the broader economic and political trajectories of each country and city, it is the similarities between women's actions and contributions to the emancipation process that are particularly striking.     

The conflict between naive and sophisticated choice as a form of the ‘liberal paradox’

Pareto-inefficient perfect equilibria can be represented by the liberal paradox approach of Sen, appropriately reconfigured to model intertemporal decision-making by an individual. We show that the preference profile used by Grout (1982) to construct a case in which naive choice Pareto-dominates sophisticated choice can be so represented, if tastes change and if the individual can make decisions at time t, which restrict or determine opportunities available in period t + 1 and beyond. This ability to make a decision that binds oneself in the future is a form of rights assignment. We also show how two resolutions of the liberal paradox work out in the individual decision framework.     

An Anti-traditional Tradition： The American Idea of Liberal Education

美国自由教育理念并非自始至终具有一个一以贯之的形态。杰斐逊开创的自由教育传统强调自由学习、知识的普及与传播,但还是以精英教育为主。但其核心“言说的自由与技艺”得以传承下去,这导致了美国自由教育思想的持续的“反传统”变革。爱默生针对美国商业文化的泛滥,提出注重反思与体验式学习的理念,为反传统的传统注入了活力。美国的自由教育仍然在针对新时期的社会流俗作出必要的调整并将持续下去。     

The Great Recession and Welfare State Reform: Is Retrenchment Really the Only Game Left in Town?

By 2010, when the Greek sovereign debt crisis changed into an existential crisis of the euro, all developed democracies entered a phase in which they had to consolidate their budgets, typically implying a politics of austerity. The scholarly literature, as well as the popular press, suggests that – consequently – welfare retrenchment and cost containment became the only games left in town. In this article, we study the welfare state reform measures taken between 2010 and 2012 in four countries characteristic of mature welfare state regimes (liberal, UK; conservative, Germany; social democratic, Denmark; and hybrid, the Netherlands) to examine empirically whether austerity has indeed become the only item left on the policy menu. Our analysis reveals that retrenchment features prominently on the agenda everywhere, but nowhere by itself. While compensation for income loss is rare since 2010, this still happens. More unexpectedly, reforms in line with a social investment agenda (like expansion of child care or active labour market policies) are still being pursued in all our four cases.     

Alternative libertarian claims and Sen's paradox

One of the ways of escaping from Sen's impossibility of a Paretian liberal is to weaken Sen's libertarian condition imposed on the collective choice rule. This paper compares three different versions of a revised libertarian claim: (1) Gibbard's theory of alienable rights (1974), (2) Gaertner's and Krüger's approach of self-supporting preferences (1981), and (3) a modification of Gibbard's theory which combines a weakened condition for alienating rights with the requirement of unconditional preferences. A new possibility theorem is obtained for version (3). It is shown that all three approaches are logically independent. Furthermore, it turns out that, under the original as well as the modified version of Gibbard's theory, the alienation of rights can be achieved through strategic misrepresentation of preferences by other members of society, whereas the concept of self-supporting preferences does not admit this kind of manipulation of rights. Approach (2) appears, therefore, to agree more closely with our intuitions concerning the nature of individual rights.     

A Tack in the Shoe: Neutralizing and Resisting the New Surveillance

Eleven behavioral techniques of neutralization intended to subvert the collection of personal information are discussed: discovery moves, avoidance moves, piggybacking moves, switching moves, distorting moves, blocking moves, masking moves, breaking moves, refusal moves, cooperative moves and counter-surveillance moves. In Western liberal democracies the advantages of technological and other strategic surveillance developments are often short-lived and contain ironic vulnerabilities. The logistical and economic limits on total monitoring, the interpretive and contextual nature of many human situations, system complexity, and interconnectedness and the vulnerability of those engaged in surveillance to be compromised, provide ample room for resistance. Neutralization is a dynamic adversarial social dance involving strategic moves and counter-moves and should be studied as a conflict interaction process .     

Civic Socialization in Public and Fundamentalist Schools*

Objective. Critics of schools governed by fundamentalist religions are concerned that these schools will not socialize students to the attitudes and values appropriate for citizens of a pluralistic liberal democracy. Among these values are support for democratic norms, political tolerance, moral reasoning and autonomy, duty to community, and acceptance of nontraditional lifestyles. This article examines the empirical basis for the critics' concerns. Methods. Using difference‐of‐means tests and multivariate regression, we compare students in the 10th and 12th grades attending regular public and fundamentalist Christian schools. Results. The 10th‐grade comparisons of the two sets of students confirm many of the expectations of critics of fundamentalist schools. By the 12th grade, however, the students in fundamentalist schools have surpassed students in regular public schools on many of the desired attitudes and values, but the fundamentalist school students remain less accepting of nontraditional lifestyles. Conclusion. For the most part, fundamentalist Christian high schools do as well or better than regular public schools in socializing their students to the values appropriate to citizenship in liberal democracies.     

Nietzsche's holism: A paradigm for integration

With Europe at a crossroads, facing both nationalism and globalism, Nietzsche has some interesting things to say about our world today. Nietzsche's holism is multifaceted and complex, thus, he has attracted many critics. Recent scholarship has interpreted his holism as an offence to modern liberal society. Some have claimed that Nietzsche's “perspectivism” and the “overcoming of morality,” two essential categories of his holism, are essentially expressions of democratic ideals of tolerance. Still others have argued that Nietzsche's ‘will to power’ is to be understood as an expression of freedom where human bondage and prejudice are cast aside in the name of some brand of neo-Kantian liberalism. And finally, there are those voices who continue to paint Nietzsche's holism as nothing more than savage realism and harsh criticism. In this essay, I examine many of these claims (focusing principally on ‘the will to power’) with the expectation of trying to discern the value of his holism for advancing a paradigm for integration.     

Peace building: a conceptual framework

An interdisciplinary legal and social work framework for peace building is presented. Inequality and its eradication are identified as linking factors transforming conflict into coexistence. Peace building is determined to entail participation in the struggle for social justice. Three conditions are identified as central to the peace building process. The first necessitates the establishment of inclusive, autonomous communities, each free to express religious, cultural and national aspirations and identity. The second requires the recognition of the legitimacy of each community to assert rights and claims without denying those of the other . This premise supports the view of the individual in relation and notes that coexistence can only be advanced through the building of mutual relationships. Finally, peace building requires recognition of human rights as a tool to promote relationships both within and between societies.     

Constitutions and Public Support for Welfare Policies*

Objectives. This research explores how constitutional designs affect a cross‐national gap in public support for welfare policies. We contend that the constitution's statements regarding the citizens' right to receive welfare services constrain elite discourse on social welfare, which in turn exerts a strong influence on the level of mass support for and ambivalence over welfare policies. Methods. Survey data from 15 consolidated democracies merged with country‐level data are analyzed using a hierarchical linear model. Results. Empirical analysis shows that citizens residing in countries with a more liberal constitution show more supportive and less ambivalent attitudes toward welfare policies. Conclusions. Our findings suggest that the political principles reflected in national constitutions explain the cross‐national gap in mass support for welfare policies.     

Threats to Democracy: A Judgment and Decision-Making Perspective

Democracy as a political form of social organization offers humanity its best prospect for freedom and peace. Today, it faces deliberate threats from totalitarian movements that rely on terrorist tactics. Democracy also faces threats from its own leaders because of the consequential nature of their judgment and decision making. This article examines how threats to democracy are perceived and managed. It is proposed that perception and management of threats to democracy represent a case of judgment and decision making under uncertainty. Relevant factors that influence policy decision making as it pertains to safeguarding democracies from threat are highlighted.     

政治信任、社会网络与抗争倾向:基于53个国家和地区的实证比较

本文基于世界价值观调查数据（2010～2014年）,构建了以抗争倾向为因变量的多层次混合效应逻辑斯蒂回归模型。对53个国家和地区的7万余份样本的分析表明,影响个体抗争倾向的因素同时存在于微观与宏观两个层次。在微观层次,相较于政治信任,个体的社会网络对抗争倾向的影响程度更高,说明相较于社会心理学视角下的集体行为理论,组织社会学视角下的资源动员理论具有更强的解释力。在宏观层次,相较于威权政体,民主政体下的个体更倾向于诉诸抗争行为。具体而言,威权政体下,强社会网络、低政治信任的个体抗争倾向最高;民主政体下,强社会网络、高政治信任的个体抗争倾向最高。这说明微观层次的因素对抗争倾向的影响受到政体类型的干预。     

Karl Marx's sociological theory of democracy: Civil society and political rights

This essay reconstructs Marx's relationship to democracy and liberalism through an examination of his early work which was directly concerned with the issues of understanding democracy as a kind of society. Only with an analysis of the dynamics of civil society—a political economic, sociological, and historical understanding—could the true nature of citizenship be discerned. In contradistinction to liberal political theory, he would argue that political theory could not stand on its own if it analyzed only the state. Marx came to understand the contradiction between the liberal state and civil society as what he called a sophistry because it undermined the possibility of the democratic agency of workers. This was a sophistry, not because he opposed political democracy, but because the development of capitalism undermined the possibility of democratic agency. Citizenship could be nothing but a “lion's skin” of politics concealing the nature of civil society beneath it. This contradiction would drive Marx's thought forward as he moved from liberalism to democratic socialism with his developing understanding of the structure and dynamics of capitalism from 1843 until the end of his life. The essay illustrates two closely related claims about Marx's thought regarding liberalism and democracy. First, I argue that Marx engaged in a democratic critique of liberalism; second, and as a response to his democratic critique of liberalism, Marx developed a more sociological understanding of democracy, and hence believed that political democracy was a necessary condition of freedom, though not a sufficient condition.