《管子》与汉初法制重构

《管予》渊源于齐文化,法制思想以礼、法并重为特色,齐用之而为东方大国;秦用商、韩之法迅速强大并统一六国,但秦法严苛激进,任法而废礼,致秦二世而亡。汉承秦之弊,在历史与现实中寻求适合自己发展的道路,于偶然,也是必然中选择了礼法并重的《管子》法制思想作为治国方略,史称黄老政治,使国家逐步实现了稳定与繁荣,并开创了二千多年的秦汉制度。     

Priorities of Global Justice

One-third of all human deaths are due to poverty-related causes, to malnutrition and to diseases that can be prevented or cured cheaply. Yet our politicians, academics, and mass media show little concern for how such poverty might be reduced. They are more interested in possible military interventions to stop human rights violations in developing countries, even though such interventions – at best – produce smaller benefits at greater cost. This Western priority may be rooted in self-interest. But it engenders, and is sustained by, a deeply flawed moral presentation of global economic cooperation. The new global economic order we impose aggravates global inequality and reproduces severe poverty on a massive scale. On any plausible understanding of our moral values, the prevention of such poverty is our foremost responsibility.     

Are There Any Rules?

The ``model of rules' that Ronald Dworkin attacks is an absurdmodel of law, if rules are taken to be standards that have nounspecified counterinstances, and whose application isalways uncontroversial. Dworkin gives good reason to thinkthat there are no such standards or virtually none in (e.g.)English law. But the model of rules is not misconceived, asDworkin claims. Rather, it needs a better understanding of the idea of a rule. I argue that the view that the law of a community is a system of rules needs to meet an importantchallenge that Dworkin has raised for jurisprudence: to accountfor the fact that legal rights and duties are frequentlycontroversial. I give an account of social rules thatexplains why controversy over their application in particularcases is common, and can be deep. So controversy gives noreason to reject the model of rules.     

Citizens' Sense of Justice and the Legal System

When an actor commits a wrong action, citizens have perceptions of the kind of responsibility the actor incurs, the degree to which the act was mitigated or justified, and the appropriate punishment for the actor. The legislatively mandated law of criminal courts, statutes, and criminal codes deals with the same issues. Experimental evidence shows that there are important discrepancies between the principles that people and legal codes use to assign responsibility. That is, the moral retributive-justice principles that people use are sometimes in conflict with the directions in which modern code drafters are taking criminal law. These discrepancies may cause citizens to feel alienated from authority, and to reduce their voluntary compliance with legal codes.     

Two Shi‘i Jurisprudential Methodologies to Address Medical and Bioethical Challenges: Traditional Ijtihād and Foundational Ijtihād

The legal‐ethical dynamism in Islamic law which allows it to respond to the challenges of modernity is said to reside in the institution of ijtihād (independent legal thinking and hermeneutics). However, jurists like Mohsen Kadivar and Ayatollah Fa?lalla have argued that the “traditional ijtihād” paradigm has reached its limits of flexibility as it allows for only minor adaptations and lacks a rigorous methodology because of its reliance on vague and highly subjective juridical devices such as public welfare (ma?la?a), imperative necessity (?arūra), emergency (i?tirār), need (?āja), averting difficulty (‘usr) and distress (?araj), hardship (mashaqqa), and harm (?arar) without interrogating the fundamentals (u?ūl) of ijtihād. In contrast, in the “foundational ijtihād” model theology, ethics, intellect, epistemology, linguistics, hermeneutics, modern sciences, history, cosmology, anthropology, and the sources of Islamic legal theory (u?ūl al‐fiqh) interact with one another to obtain resolutions that are just and non‐discriminatory.     

School Counselors’ General Self-Efficacy,Ethical and Legal Self-Efficacy,and Ethical and Legal Knowledge

School counselors encounter ethical and legal situations that necessitate the knowledge and confidence to apply decision-making skills. We report the findings from a correlational investigation that examines practicing school counselors’ (N = 287) ethical and legal self-efficacy, ethical and legal knowledge, and general self-efficacy. Higher ethical and legal self-efficacy was associated with higher general self-efficacy and ethical and legal knowledge. The implications of these findings are discussed.     

The effects of predictive ability information,locus of control,and decision maker involvement on decision aid reliance

This study examines several factors that influence decision makers' willingness to rely on mechanical decision aids. The first experiment examined the effects of predictive ability information and locus of control on decision aid reliance. The results indicate that decision makers were more likely to rely on a decision aid when its predictive validity was not disclosed. Further, decision makers with an external locus of control relied more on the decision aid than those with an internal locus of control. The second experiment expanded upon this result to examine the interactive effects of decision maker involvement and locus of control. The results suggest that involving decision makers in the aid's development enhanced reliance. However, decision makers with an internal locus of control were more strongly influenced by this form of involvement (in terms of increasing their reliance on the decision aid) than decision makers with an external locus of control. Copyright 2001 John Wiley & Sons, Ltd.     

非法植入基因编辑、克隆胚胎罪的解释学审视——对立法批判论的回应

非法植入基因编辑、克隆胚胎罪设立后,学界存有部分反对观点认为本罪分则位置及实行行为的规定存在问题。基于解释论的立场,本罪保护法益为基因库安全、人性尊严以及公共卫生管理秩序,立法通过对形式法益的保护一并实现了对实质法益的保护,且公共卫生管理秩序是主要法益,故本罪在刑法分则中的体系位置无可厚非。因为“植入人或动物子宫”的行为是实现生殖系基因编辑或生殖性克隆目的的必经阶段,所以本罪实行行为的规定在技术层面上彻底断绝了被基因编辑、克隆的细胞发育成存活个体的机会,从而达到了对该犯罪行为规制的立法目的。

     

论行政调解的法制建构

行政调解是我国调解制度的重要构成部分,是"大调解"纠纷解决机制的重要环节,对解决社会纠纷、化解社会矛盾具有特殊重要的地位和功能。但是我国行政调解法律制度至今尚未建立起来。本文认为,我国调解法律制度建设的目标是在《人民调解法》的基础上,制定统一的《调解法》,建构较为完备的调解法律制度。当前的重点是建立和完善行政调解制度,建议在《调解法》制定之前由国务院制定《行政调解条例》,建立较为完整的行政调解法律制度,国务院行政法规制定以前,各省、自治区、直辖市人大常委会可以先行制定行政调解的地方性法规,将行政调解纳入法治轨道。进而,本文围绕构建我国行政调解法律制度,对我国行政调解的概念界定、行政调解主体、行政调解的范围、行政调解的基本原则、行政调解的程序和行政调解协议的法律效力等问题进行了较为系统的探讨。     

台湾地区姑息医学制度的建立及法律实践

姑息治疗在提高晚期癌症患者生活质量、实施临终关怀、给予病人及其家属全面周到的照顾诸方面起着重要作用。在台湾,已为姑息治疗立法并实施了10年,积累了丰富的经验。这项法律本身及其细则、附件等配套文件使姑息治疗更加规范可行。研究规范的姑息治疗及台湾的相关法律可以帮助我们更好的理解姑息治疗的理念,帮助发展大陆同道构建有效实用的...