哈贝马斯合法性理论探析

经验性政治合法性理论主要关注的是政治秩序是否获得社会公众的有效认同,而不在乎认同的价值所在;规范性政治合法性理论主要关注政治系统是否获得社会公众的支持和认可的价值判断问题,它以价值判断为导向,强调政治合法性的理性标准。哈贝马斯在分析了经验性合法性理论和规范性合法性理论的基础上,提出了自己重建性的合法性理论,强调政治合法性是经验性和规范性的统一,既强调民众对政治秩序的认同,又强调政治秩序必须符合一定的价值规范。本文主要从哈贝马斯对合法性的界定、对合法性的证明——合法化以及其合法性理论的特点来分析哈贝马斯重建性的合法性理论。     

The role of self-evaluations in legitimizing social inequality

This research addresses a long standing puzzle in the social sciences: why are stratified social systems accepted as legitimate (the way things “ought” to be) by those who are advantaged and those who are disadvantaged by them? We build on previous studies of self-evaluations to explain the legitimation of inequality. The research consists of two experiments designed to test the self-evaluation theory of legitimacy. The theory proposes that structural inequality becomes legitimated when individuals’ self-evaluations and the level of resources they receive are congruent. Study 1 examines the impact of structural power on self-evaluations. Results show that participants randomly assigned to advantaged positions in power structures earn more rewards and, as a result, develop higher self-evaluations than those randomly assigned to disadvantaged positions. Study 2 addresses the relationship between self-evaluations and legitimated structural inequality by testing competing hypotheses of legitimacy. The results partially support the self-evaluation theory and partially support competing arguments about legitimacy. We conclude with a discussion of the implications of our work and suggestions for future research.     

Varieties of multi-stakeholder governance: selecting legitimation strategies in transnational sustainability politics

Multi-stakeholder initiatives (MSIs) are often referred to as the ‘gold standard’ of private governance. However, existing MSIs vary strongly in their institutional designs and the ways in which they use inclusiveness, procedural fairness and, expert-based strategies to create legitimacy for their rules. This article investigates these institutional choices. It reviews arguments about demand from legitimacy-granting audiences, isomorphic pressures, and the role played by institutional entrepreneurs, and intergroup bargaining. It explores these mechanisms in an empirical investigation of the formation of three MSIs in the field of sustainable agriculture. Its findings advance our understanding of the conditions under which MSIs adhere or depart from normative ideals of democratic governance.     

The politics of marginality in Wallowa County,Oregon: Contesting the production of landscapes of consumption

The state of Oregon’s (USA) land use planning framework has long been characterized by tensions between state and local authority, between traditionally-defined “urban” and “rural” concerns, and between the competing interests of various landowners. An examination of Wallowa County, Oregon’s implementation of House Bill 3326, a 2001 law giving counties the power to define certain agricultural lands as “marginal,” and therefore exempt from restrictions on subdivision and development, illustrates the ways in which these tensions become magnified as rural communities attempt to govern private land use in the context of rural restructuring. Implementation of HB3326 highlighted the tensions between landowners interested in capitalizing on development opportunities afforded by HB3326, neighboring producers concerned about interference from future amenity migrants, and existing amenity migrants with interests in protecting their rural idyll. Contestations over nonfarm development took place in the context of a strong agricultural community identity, concerns about the effects of economic restructuring on producers, and local resistance to the rural gentrification process. The process of defining marginality came to encompass not only technical issues of land productivity, but also broader community contestations over the continuation of traditional land uses and the legitimacy of various actors to govern private land.     

论信赖保护原则在行政指导中的适用

信赖保护原则在我国行政法学研究和行政法中的运用相对来说还比较落后。笔者认为 ,该原则对行政指导“合法性危机”之解救具有重大的理论和现实意义 ,应在行政法上予以明确。本文进而探讨了信赖保护原则在行政指导中具体适用情况 ,并提出允许以之为由提起行政指导司法审查的理论主张     

ON 'MAELSTROMS LARGE AND SMALL,METAPHORICAL AND ACTUAL': 'GRAY ZONES' IN THE WRITINGS OF PRIMO LEVI

This article examines the work of Primo Levi, with a focus on the tensions between ‘witness’ and ‘public intellectual’ in Levi's work. It analyses the notion of ‘gray zones’ in Levi's writings, where it functions as a way of indicating transformations in political action and public discourse in the wake of Auschwitz: most importantly, the Nazi genocide undermined the position of ‘spectator’ crucial to liberal discourse by implicating the spectator as a ‘bystander’. The study goes on to discuss the concepts of ‘work’, ‘science’ and ‘intellect’ in Levi's writing, showing how these categories reflect Levi's ultimately unsuccessful struggle to uncover a mode of political thought and public intervention adequate to the changes in political space of which the ‘gray zone’ is symptomatic, i.e. a condition of universal complicity and powerlessness. It concludes that implicit (and undeveloped) in Levi's thought is a set of ‘aesthetico-political’ presuppositions concerned with the articulation of founding, legitimacy and judgement. These presuppositions challenge the reliance of emancipatory discourses upon subjectivity and the logic of self-determination, indicating the need for a politics based on ‘pedagogical accountability’. Resisting the postmodern logic of ‘testimony’, which emerges in the gap between universal claims and their performance and hence dismantles the ‘outside’ as a space of judgement, i.e. the determination of the legitimacy of actions, the politics of pedagogical accountability grounds such an outside in the conjoining of power, responsibility for the world and boundary thinking. This space ‘outside’ ideology and the circulation of subjectivities emerges via resistance to the specifically ‘anti-political’ violence pervasive in late capitalism, and through the clarification of the distinction between this mode of violence and that (‘pre-political’) violence aimed at ‘subjects’.     

共有产权保障性住房制度中的法律问题及公证应对

共有产权保障性住房作为未来保障性住房的主要模式,已经基本得到法律法规的确认,但现阶段立法者的精力主要集中于宏观架构,忽略了制度运行中的具体问题。在购房未满5年的期限内转让、担保、出租甚至分割应有份额的约定属于违法行为,公证机关应拒绝办理此类公证;因房屋使用、管理产生的债务可完全由受保障对象承担,由于不具有公示效力,政府并不因此而免责,公证机关应谨慎审核该类约定条款;因房屋侵权所产生的债务可完全由受保障对象承担,公证机关可对此予以公证;物业费、业主权等事宜可完全由受保障对象承担、享有,公证机关可对此办理公证;一般管理行为可明定受保障对象单独为之,重大修缮行为则不宜使政府的决策权被多数决机制架空,公证机关需进行实质审查;不论法定继承,还是遗嘱继承,公证机关均需谨慎对待5年禁售期内的继承公证,对超过5年禁售期的相关继承公证则可持相对宽松态度。     

Freedom ossified: Political culture and the public use of history in Jamaica 1

The basic thesis of this paper addresses three distinct, yet related, historical developments. Firstly, the democratic promise of freedom for Caribbean people was not fulfilled, as the planter class was not prepared to renounce its power. Secondly, when it was no longer able to hold on to its power, political responsibilities were given to the middle classes, which celebrated this transition as a major achievement. However, the actual arrangements that were made still kept the majority of the people from meaningful participation in the political process and from access to economic resources. Nevertheless, the middle classes introduced the celebratory notion of freedom, although freedom continued to be denied to the majority. Thirdly, in the current period of globalization and neoliberal economics, this ethos has now attained a quasi‐mythical status in many Anglophone Caribbean countries and, at the very same time, the notion of freedom has been emptied of its practical meaning and has in many instances become counter‐productive. In short, Caribbean freedom has become ossified.     

高校取消考试作弊学生学位的法理探讨

在校大学生只要达到法定要求，就依法享有申请获得学位的权利。为学生授予学位是高校在法律法规授权下作出的一种行政行为，应当符合相关规定，并遵守行政法的基本原则。高校因学生考试作弊而不授予其学位不符合行政合法性原则和行政合理性原则。应当采取适当的方法解决这一现实问题。     

论规范性文件的审查标准:适当性原则的展开与应用

适当性原则是县级以上人大常委会实施规范性文件审查的判断标准.在监督法上,适当性原则被细分为两种类型外加一个兜底规定,但审查的具体标准和操作规则并不明确.比照行政法学上的审查标准,适当性原则可以按合法性与合理性两个纬度展开.前者体现保障社会主义法制统一性以及中央立法权威性的功能预期,操作上要求判定规范性文件的制定主体、程序与内容是否符合上位法的规定,价值上以审查过程的确定性以及审查操作的羁束性为追求.后者体现出保障立法科学性与人民性的制度功能,在操作上兼顾立法的形式合理性以及经济效益、政治正确与社会影响等实质合理性要求,具有灵活性与裁量性的价值属性.