"私"自治的辨析

自治为私法的基本价值理念,而"私"自治的具体内涵应该包括私法自治、私人自治两方面,前者是指私法相对与公法、社会法的独立地位,而后者则是指私法主体在具体的法律关系中的意思自主。其二者既相区别又有密切联系。从法规范的层面来看,"私"自治是以任意性规范为主,但基于更高的价值目标,强行性规范也会对自治进行介入,但是根本目标在于更好地实现"自治"。     

Prisoners' perception of informing to the authorities: an analysis in terms of functional moral judgment

A series of functional measurement experiment show that prisoners modulate their moral judgments of violations of their in-group regulations. The participants were 67 women and 80 men, sentenced for at least three years for murder, robbery, drug-traffic or white collar offenses. Each was asked, individually, to imagine a series of incidents where incriminating information on in-group or out-group inmates is delivered to the prison authorities or to an ingroup source and to rate the deserved denigration of the informer, who was characterized as a leader or not and as a drug-addict or not who had a prison-leave or not. An assignment of approximately equal weight for social status, drug use and prison leave was found, beyond gender and type of offense. In line with the hypothesis of judgmental modularity, informing to an out-group source was judged much more severely than informing to in-group arbiter and than informing on an out-group inmate.     

Non-treatment decisions on grounds of "medical futility" and "quality of life": interviews with fourteen Dutch neonatologists

This essay opens with background information about the concept of "medical futility" and the regulation of nontreatment decisions in Dutch neonatology. The regulations include a list of criteria for predicting the baby's future quality of life. The second part presents the findings from interviews with fourteen Dutch neonatologists on the mannerin which they apply the criteria in their practice.     

新桂系“自治”法律思想之辨析

以李宗仁等为核心的新桂系在广西主政期间,为维护其在广西的政治统治,扩充地盘,增强实力,以图缓和境内阶级、民族矛盾,围绕着军事,有组织、有系统地带动了经济、文化教育的发展,使广西一度成为受全国瞩目的“模范省”。在此过程中,新桂系取法孙中山的“三民主义”精神而创立的“三自”政策起了非常重要的纲领性作用。而其中,源自于三民主义中的“民权主义”的“自治”法律思想对于研究旧中国近现代“地方自治”思想的演变具有较大的价值。     

Genomics and toxic torts: dismantling the risk-injury divide

Emerging genetic and molecular technologies are revolutionizing our understanding of the relationship between genes and the environment. This Article develops an innovative framework for understanding the implications of the genomic revolution for the law of toxic torts. Professor Grodsky demonstrates how new technologies are poised to challenge longstanding distinctions between legally inconsequential "risk" and remediable "injury," and how the U.S. legal system will need to adapt to this emerging reality. If the law remains wedded to conventional notions of injury, it will ignore the fruits of a scientific revolution and thus may forego new remedial opportunities as yet unimagined. This is particularly significant given that twenty-first century medicine strives to "go beyond the limitations of biology" and detect, prevent, and treat disease at the molecular level. The transformative and rapidly evolving technologies of the genomic era will present herculean challenges for the legal system. But opportunities to fashion new remedies and create new efficiencies must not be overlooked in the process. Professor Grodsky recommends legal approaches to balance the goals of deterrence and legal restraint in an age of accelerating scientific change.     

The moral status of wrongful life claims

A wrongful life action is a claim brought by a disabled child who asserts that but for a physician's negligence he or she would not have been born, thereby being spared the suffering of life. The action is inherently controversial because the alternative to an impaired life is non-existence. Lord Griffiths has described such claims as 'utterly offensive; there should be rejoicing that the hospital's mistake bestowed the gift of life upon the child.' This paper cuts through the rhetoric that the debate has generated and analyses whether there is a sound doctrinal basis for recognizing wrongful life actions.     

Caregiving and quality of life

ABSTRACT

The increase in life expectancy for adults with learning disabilities has extended the caring role for their parents. This study examined the experiences of older parents who provide long-term care for their adult children with learning disabilities and how they conceptualise their quality of life. Data were collected using semi-structured interviews with 27 older parent carers from four London boroughs and were analysed using framework technique. Findings indicate that most parents appraised their quality of life positively and reported benefits, despite the challenges they had to negotiate daily. The benefits from caregiving, more so in later life, were: a connected family from shared caregiving; a sense of belonging; purposeful living; a reciprocal relationship with their adult children; and personal transformations from providing care that improved their quality of life. The challenges that participants regularly encountered were: multiple losses (sleep, career, identity and friends); the added stress of the government’s Personalisation Agenda of caring services; struggles for access to services; searching for a diagnosis; worry about future care and fear of abuse when carers are unable to continue in their role; unhelpful attitudes of health and social care professionals; and a lack of empathy from friends as well as the public towards people with learning disabilities. Caregiving and quality of life are inextricably linked and the difficulties that parents experienced were mainly associated with socio-structural barriers, rather than their children’s disabilities. Importantly, the findings inform the practice of social workers and others who support this unique group of carers by providing new insights into how caring impacts on quality of life over time and how best these parents’ needs can be met. This study makes a specific contribution to understanding the lived realities of older carers and extends current conceptualisations of caregiving and quality of life among older people.     

Managing Autonomy: Analyzing Arts Management and Artistic Autonomy through the Theory of Justification

Arts management has commonly been analyzed as a microcosm of the art field, in which struggles between artistic, economic, administrative, and societal considerations are constantly being fought. Using the field theory of Bourdieu, scholars have attempted to uncover levels of functional differentiation within arts organizations, and interpreted differentiation between artistic considerations and economic and administrative considerations as a core element in defining the artistic autonomy of such organizations. In this article, I present an alternative approach to the interpretation of artistic autonomy in arts management. Through the stories of three artistic directors and the way in which they run their theatres, I aim to show the theory of justification (developed by Boltanski and Thévenot) and shed new light on the interpretation of arts management, as well as on the understanding of artistic autonomy more generally.     

新《公司法》对股东与公司自治的扩张与限制

股东与公司自治在自治主体的人格性质、自治的内容、自治的途径方面有所不同,但又存在自治主体的依存性、自治权利的主从性以及自治目的的一致性的联系.新<公司法>通过扩大股东投资的自由度、扩张股东的实体权利、扩大公司章程自治范围、放松对公司经营行为的限制、扩张股东诉权等方式对股东与公司自治予以扩张.同时,又通过加大对股东权利之滥用和控制股东权利的限制、加强对公司管理层职权行使的限制、强化对公司的财务会计监督、赋予公司社会责任、对一人有限责任公司进行特别限制等措施对股东与公司自治进行限制.     

Not disabled enough: the ADA's "major life activity" definition of disability

Michelle Friedland argues in this note that the Americans with Disabilities Act fails to adequately distinguish between the separate goals of preventing pure discrimination and providing affirmative accommodation. The Act's conflation of these two different objectives, and its reliance on a single definition of disability for both, hinders its effectiveness in improving the status of individuals with disabilities in the employment setting. To illustrate this, she points to the counterintuitive results reached in recent court decisions. Friedland further traces the legislative origins of the Act's definition of disability and the ambiguity it leaves as to Congress's goals for the Act's employment provisions. She posits three possible goals the Act might be designed to achieve and recommends basic reforms for accomplishing each. Her ultimate conclusion is that provisions dealing with accommodation and discrimination need to be divided so that each can have its own definition of disability. In addition, she believes funding mechanisms for providing accommodation should be altered to ameliorate inequalities in burdens borne by employers and to avoid improper incentives to circumvent the Act.