法律社会化的内在途径研究——遵循市民社会的视角

"法律社会化"是法社会学的中的一个重要的理念,学者在阐述法律社会化时多会遵循以下两种定义方式:一把其看作是社会主体从"自然人"向"法律人"转换的过程;二是指西方国家的"法律社会化运动"。学者构建推进法律社会化的路径多从单纯的法条的推广到兼顾法律理念的内化,但只有遵循市民社会的视角才能使法律真正的内化于民,促进法律的社会化。     

THE ROLE OF LAW IN ECONOMIC GROWTH: A LITERATURE REVIEW

Abstract Compared with other explanatory variables, such as capital accumulation, technological innovations, geographical endowments, economic openness, and cultural factors, institutions, especially legal institutions have been regarded as a crucial condition for economic growth in recent years. The importance of legal rules is systematically revealed by a series of cross‐country econometric studies conducted by La Porta et al., who claim that legal origins are central to understanding the divergence in living standards across the regions and countries of the world and, compared with civil law countries, especially those countries with French civil law tradition, common law countries have enjoyed superior economic outcomes. The controversies set off by La Porta et al.'s proposition indicate that there are a number of questions that are difficult to explain by La Porta et al.'s theory, and hence call for more work on comparative analysis of different legal families before a consensus can be reached.     

11. Toward Lasting Peace: Kant on Law, Public Reason, and Culture

Kant helps us understand the conditions for peace by reminding us that lasting peace requires both cosmopolitan legal reform and individual moral improvement, including resistance to egoism and the cultivation of cosmopolitan attitudes. The duty to pursue peace includes the duty to promote the rule of domestic and international law and work against its unilateral subversion. The juridical cosmopolitanism of a worldwide league of free peoples enables resistance to the dangers posed by authoritarian regimes and their dangerous willingness to manipulate their subjects and ignore international law. Constraining egoism enables people to overcome the tyranny of their desires and cultivates a sense of affiliation with the larger community of humanity in general, providing the moral foundation needed to support a cosmopolitan legal order. Moral development to a great extent is fostered through the arts and humanities, and a robust cultural life therefore ought to play a central role in the pursuit of global peace.     

Constitutional Confusion: Slavery,Abortion, and Substantive Constitutional Analysis

A comparison of two U.S. Supreme Court cases about fundamental rights, one on slavery, the other on abortion, sheds light on constitutional law and the principles undergirding liberal constitutional democracy. The Dred Scott case in 1857 denied constitutional rights to enslaved Africans and their descendants living in the United States. The Roe v. Wade decision in 1973 created a constitutional right to abortion that denied constitutional personhood to human beings prior to birth. Both cases involved applications of what legal scholars call “substantive due process”—that is, a substantive interpretation of the constitutional requirement that governments provide persons with “due process of law” that moves beyond procedural formalism. Although many constitutional scholars deny the legitimacy of substantive due process as a legal doctrine, this article proposes that the judicial system cannot ultimately avoid substantive moral questions in constitutional interpretation. In both cases examined here, the crucial question was about who counts as part of the people whom the Constitution protects, and that question could not be answered in purely formal terms. Both Dred Scott and Roe v. Wade erred not by engaging substantive moral questions but rather by denying, in different ways, the natural rights of human persons.     

会计舞弊非道德行为的边际效用规律

本文对会计舞弊这一行为的研究锁定在道德这个主观层面上,将其界定为是一种非道行为来加以研究。文章首先明确了道德与经济的一致性,然后在经济学效用论的基础上提出了一种反向的边际效用递减规律。研究结果显示该种规律用来解释连续性会计舞弊最有效,从而为加强会计职业道德建设提出切实可行的建议提供了理论依据。     

劳动关系作为法律关系:兼论劳动法学研究的范式转换

劳动关系和劳动法律关系区分的理论更多是法外视角研究劳动关系问题的结果。法律调整社会关系或劳动关系并非是指存在先在的供法律调整的社会关系,而是指法律通过规范人的行为在当事人之间产生法律关系,该法律关系是社会关系的特殊形式;法律关系产生的过程不是寻找社会关系的过程,而是判断法律规范规定的构成要件是否具备的过程。法律调整劳动关系因此是指出现法律规范的构成要件时在当事人之间产生以一方提供依附性劳动、另一方支付报酬为主要义务的权利义务关系,也即法律意义上的劳动关系。从上述劳动关系的逻辑出发,则事实劳动关系概念需要正本清源,集体劳动关系非法律意义的劳动关系,劳动法律关系、社会劳动关系、个别劳动关系等概念无存在必要。劳动法学研究应实现从法外视角向法教义学研究并重的转换。我国劳动法的规则体系和理论体系应围绕劳动关系展开。     

Assessing the long‐run economic impact of labour law systems: a theoretical reappraisal and analysis of new time series data

Standard economic theory sees labour law as an exogenous interference with market relations and predicts mostly negative impacts on employment and productivity. We argue for a more nuanced theoretical position: labour law is, at least in part, endogenous, with both the production and the application of labour law norms influenced by national and sectoral contexts, and by complementarities between the institutions of the labour market and those of corporate governance and financial markets. Legal origin may also operate as a force shaping the content of the law and its economic impact. Time‐series analysis using a new data set on legal change from the 1970s to the mid‐2000s shows evidence of positive correlations between regulation and growth in employment and productivity, at least for France and Germany. No relationship, either positive or negative, is found for the UK and, although the United States shows a weak negative relationship between regulation and employment growth, this is offset by productivity gains.     

课堂教学与实践教学相结合的教学模式——关于“道德修养与法律基础”课教学的探索

“思想道德修养与法律基础”课是一门旨在培养和提高大学生思想道德素质和法律素质的思想品德课,但单纯的课堂理论教学往往使学生产生政治学习倦怠现象,因此课堂教学和实践教学两种模式相结合成为未来教学模式发展的必由之路。笔者在“思想道德修养与法律基础”课教学中对课堂教学与实践教学相结合的4种模式及具体做法进行了阐述,对高职“道德修养与法律基础”课的教学模式进行了有价值的探索。     

论劳动合同试用期的法律属性

由于劳动法律出于倾斜保护劳动者合法权益之考量,在法律规范上加入了大量国家干预的内容,使得劳动法律兼具有私法与公法之双重性质,因而对劳动合同试用期之法律属性的分析,不能仅仅局限于劳动法理论本身,更应以民法理论为基础。在劳动法范畴,试用期为劳动合同之特别契约;而在民法范畴,试用期为劳动合同所附之解除条件。     

Rule of Law and Rules‐Lawyering: Legal Corruption and ‘Reprivatization Business’ in Warsaw

Delving into the nexus between the state and informality, this paper discusses the informality of the legal and judicial systems. Produced by structurally powerful actors, this kind of informality is not so much legitimized by the law, but concealed within the very process of legitimization. To capture how legal engineering welds formalized laws with informal translations, I look at judicial outcomes that, while formally legal, are socially delegitimized and perceived as legal corruption. After analysing the contested judicial outcomes of Warsaw's ‘reprivatization’ process (property restitution), I define the mechanism of legal corruption as rules‐lawyering, by which I mean an attempt to gain legal advantage by obsessively sticking to the written laws, while deliberately desecrating its spirit. I describe three of its mechanisms: appropriation, redefinition and fraud laundering. Finally, in my preliminary vivisection of the recent and ongoing process of delegalizing the legal corruption that has been part of the reprivatization process, all the allied concepts of this forum come together to demonstrate the essential inseparability of informality and state.     

Management,Theology and Moral Points of View: Towards an Alternative to the Conventional Materialist‐Individualist Ideal‐Type of Management*

abstract Weber's (1958 ) argument suggests that there are four ideal‐types of management, and that conventional management is underpinned by a moral‐point‐of‐view associated with a secularized Protestant Ethic, which can be characterized by its relatively high emphasis on materialism (e.g. productivity, efficiency and profitability) and individualism (e.g. competitiveness). Weber calls on management scholars and practitioners to become aware of their own moral‐points‐of‐view, and to develop management theory and practice that de‐emphasizes materialism and individualism. Our paper responds to this challenge, as we draw from an Anabaptist‐Mennonite moral‐point‐of‐view to develop a radical ideal‐type of management that is characterized by its emphasis on servant leadership, stakeholding, job crafting and sustaincentrism. Implications for management theory and practice are discussed.     

当代大学生思想道德修养与法律意识的现状及应对措施的探讨

加强大学生的思想道德修养和法律修养,是社会主义教育方针的基本要求,也是大学生成才的需要。思想道德修养课能帮助大学生从历史和现实的大量素材和生动事例中,汲取有益的精神养料,获得真、善、美的心理启迪,正确掌握思想道德修养的理论和方法,提高综合素质,努力创造无愧于时代和人民的业绩。     

Organizationally sensible versus legal‐centric approaches to employment decisions

Many managers and human resource professionals view the law increasingly as an overly restrictive influence on their ability to manage employees effectively. This article is intended to alert HR professionals to the risk that they are unnecessarily contributing to the impact that legal considerations have on the management of employees as a result of “legal‐centric decision making.” We introduce the construct of legal‐ centric decision making, present a model of the primary factors contributing to legal‐centric decision making, provide support for the model from diverse literatures (e.g., behavioral decision making, management, and law), and identify several keys to avoiding legal‐ centric decision making. © 2006 Wiley Periodicals, Inc.     

公司治理与会计信息质量关系文献述评

公司治理一直是国内外法学界和经济学界的理论研究热点，会计信息质量的研究同样是会计学界的关注点。研究表明，充分、完善的会计信息系统在减少信息不对称、控制逆向选择及限制道德风险方面发挥着重要作用，会计信息与公司治理两者之间存在着天然联系。本文在对有关文献进行梳理的基础上，界定了公司治理和会计信息质量的概念，对公司治理和会计信息质量关系研究的国内外文献进行了归纳。     

Henry George and the Ethics of Economics

Abstract . Henry George's Progress and Poverty (1879) is a great ethical masterpiece. Its moral tone distinguishes the book. More than an economics test, it is a philosophic quest for justice, an impassioned declaration of the rule of natural law. Indignantly attacking the contention that economics has no place for natural law or ethics, George exclaims: “She [economics] has been degraded and shackled; her truths dislocated; her harmonies ignored.” On the contrary, George stresses, political economy (economics) is a science, and like all sciences, is governed by natural law. Furthermore, it is basically “moral.” Science must, of necessity, always lead to ethics. Natural law must, of necessity, always lead to morality, or justice.“The law of human progress, what is it but the moral law?” George asks. “Unless its foundation be laid in justice the social structure cannot stand.” The social ill that perpetuates poverty and the manifold evils it causes is private ownership of land and the private privilege of collecting its rent. “The fundamental law of nature, that the enjoyment by man shall be consequent upon his exertion, is thus violated.”     

坚持以人为本,努力提高农民思想道德和科学文化素质

努力提高农民思想道德和科学文化素质,是践行科学发展观、推进社会主义新农村建设的需要。大力发展农村教育、更新农民的思想和观念、加强对农民的民主法制教育、倡导健康文明、大力发展农村公益性文化事业等,是提高农民素质的根本途径。     

论山寨行为的法律规制

近几年,山寨一词渐渐为公众所熟悉,山寨文化现象屡见不鲜,山寨产品遍布市场,可以说它已经进入了我们生活的各个方面。山寨行为的存在自有其法律学的意义,然而,形形色色的"山寨行为"同时也带来了许多法律上的纠纷和问题。本文正是从这一问题出发,第一部分从法律学的视野解析了"山寨行为"的基本概念和其产生、特点和基本性质;第二部分从法理学的角度着重分析了我国"山寨行为"的法律规制现状;第三部分是在前两部分讨论的基础上,探讨了实现我国"山寨行为"法律规制的几条重要途径。     

论信任关系与法律关系的平衡

大众伦理和一般道德要求委托人和代理人都不应该危害对方的利益,以保持信任关系的稳定。但这种信任关系的存在不可避免地会产生委托关系内部成员间相互容隐的现象,这无疑会对犯罪控制、实现治安利益产生一定的负面影响。信任关系与法律关系间存在张力,两种利益间的协调成为问题。应当明确法律尤其是刑法决不能伤害人性道德的基本价值,同时在信任关系和法律关系矛盾问题的解决上,应考虑实际情况,不可偏执于一端,以寻求平衡共存为最妥善的解决之道。     

Identifying consumers' engagement with renewable energy

A moral engagement with sustainability enhances consumers' willingness to pay an increased rate for renewable energy when utility firms offer a variety of financial incentives to buy, rent and lease energy solutions to promote the uptake of energy‐efficient technologies. Using structural equation modelling, with data collected from 140 residential energy consumers in Canada, this paper tests and finds evidence that consumers' moral disengagement with environmental concerns negatively influences their willingness to pay more for renewable energy. Furthermore, it is observed that a consumer's perceived sense of control when evaluating energy solutions further accentuates the effects of moral disengagement on willingness to pay. These findings also illuminate the socio‐economic factors that encourage moral engagement concerning renewables. These findings underscore and build upon the claims of the theory of moral self‐regulation. The results and implications guide energy suppliers in potential niche business models to promote the uptake of energy efficient technologies. Similarly, the findings can guide policy‐makers on the cognitive and psychological factors that shape consumers' moral engagement with environmental concerns.     

Subterranean Commodification: Informal Housing and the Legalization of Basement Suites in Vancouver from 1928 to 2009

This article draws on Margaret Radin's theorization of ‘contested commodities' to explore the process whereby informal housing becomes formalized while also being shaped by legal regulation. In seeking to move once‐informal housing into the domain of official legality, cities can seldom rely on a simple legal framework of private‐law principles of property and contract. Instead, they face complex trade‐offs between providing basic needs and affordability and meeting public‐law norms around living standards, traditional neighbourhood feel and the environment. This article highlights these issues through an examination of the uneven process of legal formalization of basement apartments in Vancouver, Canada. We chose a lengthy period—from 1928 to 2009—to explore how basement apartments became a vital source of housing often at odds with city planning that has long favoured a low‐density residential built form. We suggest that Radin's theoretical account makes it possible to link legalization and official market construction with two questions: whether to permit commodification and how to permit commodification. Real‐world commodification processes—including legal sanction—reflect hybridization, pragmatic decision making and regulatory compromise. The resolution of questions concerning how to legalize commodification are also intertwined with processes of market expansion.