“非遗”传承人权利保障机制地方法制评述:兼论“非遗法”的反思与完善

《中华人民共和国非物质文化遗产法》("非遗法")颁布实施以后,我国已就非物质文化遗产(非遗)传承人权利保障相关问题进行地方法制实践。这些地方立法不仅保留了"非遗法"相关规定之精华,同时亦在此基础上进行了创新。这些地方法制的做法不仅具有正当性,还具有诸多亮点和启示。为缓解非遗领域不同位阶法律适用冲突以及平衡、协调非遗传承人权利与义务之间关系,"非遗法"应就非遗传承人权利保障机制等问题进行规定,以最终实现非遗法律体系形式功能与实质功能的统一。     

Nudges and the limits of appropriate interference: reading backwards from J.S. Mill’s harm principle to Jeremy Bentham’s indirect legislation

ABSTRACT

The starting point of the present paper is the nudge phenomenon. The most disturbing element of nudge is its potential for individual manipulation, that is, for relying on initiatives that go beyond the acceptable limits of interference in individual choice. This feature is not ignored by nudge advocates, who discuss it extensively to justify the overriding benefits of such initiatives. In this discussion, they acknowledge the seminal importance of J.S. Mill’s harm principle, which is introduced in On Liberty. Academics without hidden agendas must look into Mill’s theories from an intellectual history perspective and study to what extent Mill’s harm principle lends support to the interference of government and society in private lives. This paper first unveils some contradictions in the interpretation of Mill’s harm principle in order to show that it is an unlikely source of philosophical justification for nudge proponents. The paper argues further that Mill was familiar with Jeremy Bentham’s writings on indirect legislation, presented in the Traités de legislation civile et pénale. It pinpoints elements of indirect legislation that are discussed by Mill in On Liberty, without ever naming them as such. The paper contends that Mill’s presentation of the harm principle can be read as a discussion with Bentham in relation to the appropriate limits of government intervention in people’s lives. This double reading of Mill and Bentham through the lens of indirect legislation makes it possible to pinpoint the main differences between the authors as regards the appropriate degree of government interference. Bentham’s theories appear to be a more appropriate source of philosophical justification for the use of nudges than Mill’s harm principle.     

‘Prevention of evil,production of good’: Jeremy Bentham’s indirect legislation and its contribution to a new theory of prevention

ABSTRACT

This paper critically analyses current depictions of prevention and tries to offer a new theoretical reflection on the concept by reconstructing it on the basis of Jeremy Bentham’s writings on indirect legislation. It is my aim not only to explore Bentham’s concept of indirect legislation as an outstanding example of enlightened social/public policy, but also to show to what extent his thoughts might be a fruitful contribution to a necessary reconceptualization of current conceptions of prevention, which are heavily criticized by many scholars.     

Jeremy Bentham,choice architect: law,indirect legislation,and the context of choice

ABSTRACT

The goal of this paper is to locate indirect legislation within Bentham’s art of legislation, and to distinguish it, as far as possible, from direct legislation. Along the way, some parallels are drawn between indirect legislation on the one hand, and the Nudge theory of Thaler and Sunstein on the other. It will be argued that many expedients categorized by Bentham as indirect legislation are simultaneously exercises of direct legislation. Another set of indirect expedients act on knowledge, and involve efforts to eliminate asymmetries of information between potential offender and potential victim by providing official standards and disseminating a plethora of factual information. Other forms of indirect legislation threaten the coherence of Bentham’s theory of law, firstly by regarding all government actions as exercises in legislation, and secondly by turning the formers of public opinion into legislators. Insofar as some forms of indirect legislation operate by sleight of hand, they conflict with Bentham’s commitment to transparency in the exercise of public power, reflecting a tension between reality and appearance which runs through his thought.     

Nudging Bentham: indirect legislation and (neo-)liberal politics

SUMMARY

The debates over Sunstein and Thaler’s Nudge oppose libertarianism and paternalism, or defend the authors’ proposed manipulation of individuals’ ‘choice architectures’ as a consistent system of libertarian paternalism. My essay looks beyond the terms of this debate and revisits Bentham’s ‘Indirect Legislation’ in order to excavate the issues raised by the deployment of technologies of behavioural economics in schemes of government. On the one hand, nudging is nothing other than a mild and carefully considered mode of indirect legislation, and the authors are right to join Bentham in pointing out that the landscape they seek to improve is always with us; we are always already governed and governing others, and we might as well govern and be governed better than we do/are. On the other hand, nudge-like innovations reveal the extent to which Bentham’s insights have been captured by a disciplinary orientation that removes its subjects from political space. Put differently, the issue with this kind of government is not that it interferes with our liberty so much as that it presumes our lack of political orientation and efficacy. Bentham’s liberal subjects inhabit a public and even republican space that Sunstein and Thaler’s neo-liberal subjects have long since abandoned.     

Executives, Legislatures, and Decentralization

This article considers the role of executives and legislatures in authoring decentralizing legislation to study the type of decentralization each sought to achieve. I find that differences across branches are more significant than differences across political parties. The executive played a significant role in the process of decentralization emphasizing administrative forms of decentralization. Congressional efforts to write laws, on the contrary, focused on the political aspects. Thus, the involvement of both branches in policymaking contributed to the multidimensional form and high degree of decentralization in Colombia.     

Geographies of asylum, legal knowledge and legal practices

Law and legal discourses are an integral part of social life, a central means of producing social identities and exercising social power in day to day life. Critically informed geographical perspectives on law have illustrated in a number of ways how the legal and social (and therefore the spatial) are mutually constitutive. This paper argues that perspectives from critical legal geography can offer insights into the operation of asylum and immigration law in the UK in the late 1990s. This paper argues that legal practices and relations are organised in hegemonic and counter-hegemonic ways in different places and institutional contexts in London. In addition law and legal practices comprise a particularly important way in which ‘community’ can be constructed simultaneously across a variety of different scales in ways that can marginalise and exclude relatively powerless groups like asylum seekers. Thus refugee identities offer a particularly clear example of how social realities are constituted by law and legal practice.     

Regulating Scientific Diving and Underwater Archaeology: legal and historical considerations

The regulation of scientific and archaeological diving is complex but it is essential that underwater archaeologists are familiar with the requirements placed on them by legal systems. This paper outlines the history and development of current legal systems in four jurisdictions: the UK, USA, EU and Australia. This historical and legal approach informs key discussions facing maritime archaeologists; reference is made to training requirements, safety records and the question of who should be allowed to participate and who should be excluded from archaeological diving.     

日本的能源立法与执行情况

日本已形成了由能源政策基本法立法为指导、各能源专门立法为中心内容、相关部门法实施令等为补充的能源法律体系。为了保证能源法律能够得到有效的执行,日本采取了多种措施,但也存在一定的问题。日本能源立法及其执行的经验,对我国能源立法具有重要的借鉴作用。     

Australian Coastal Management and Climate Change

The Fourth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC) raised public awareness of the need to consider climate change in coastal management and gained international recognition when it received a joint award of a Nobel Peace Prize in 2007. The raised awareness of climate change surrounding the work of the IPCC was in large part responsible for the focus of the recent Australian national inquiry into coastal management in the context of potential climate change impacts on the coast, conducted by the House of Representatives Standing Committee on Climate Change, Water, Environment and the Arts. In the same year the then Minister of Climate Change, Senator Penny Wong, and the Department of Climate Change released a major government report Climate Change Risks to Australia's Coast and set up a national Coasts and Climate Change Council to provide advice to the government. This paper provides a review and analysis of the extent to which climate change issues, within the context of the broader global change debate, have influenced Australian coastal management through its legislation, policies and practice. In particular, the paper focuses on the impact of recent national reports and state government legislative and policy changes and draws conclusions on future directions for Australian coastal management.