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For Selected: Download Citations EndNote Ris BibTeX Toggle Thumbnails Select Hume's Problem in Natural Law and Legal Positivism REN Qiang Journal of Jishou University(Social Sciences Edition)    2024, 45 (4): 18-31.   DOI: 10.13438/j.cnki.jdxb.2024.04.003 Abstract （176）      PDF（pc） （839KB）（133）       Knowledge map    Save That a fact judgment "Being" does not lead to a value judgment "Ought" is called Hume's rule.Later,Hare divided value judgment into moral judgment and normative judgment;Milne then divided facts into non-hypothetical facts and hypothetical facts,and argued that the hypothetical facts contain normativity;Searle further divided fact judgment into brute fact judgment and institutional fact judgment,and proposed that two kinds of value judgment can be derived from institutional fact judgment:evaluative and normative,so as to partially complete the deduction from "Being" to "Ought".Under the influence of Hume's rule and its evolution,there exist a pattern from "Ought" to "Ought",a pattern from "Being" to "Being",a pattern from "Being" to "Ought",and a derivation of negative "Being" and "Ought" in natural law and legal positivism.The evolution of Hume's rule and the exploration of "Being" and "Ought" by natural law and legal positivism reveal the following conclusions:(1) The pure fact judgment completely independent of man is a transcendental existence.(2) A value judgment is a subjective judgment,which only evaluates or normalizes the objective elements that may be involved in the judgment,but does not describe them.(3) There are descriptive fact judgments excluding the subjective factors such as approval,preference,evaluation,acceptance,norm and command,from which value judgments cannot be derived.(4) There are institutional realities transformed by practice,from which value judgments can be derived.(5) In practical reason,fact judgment and value judgment are not completely divided and can be accommodated. Reference | Related Articles | Metrics | Comments（0） Select On the Enforcement Power of Freedom Penalty and Its Norms in China DI Xiaohua Journal of Jishou University(Social Sciences Edition)    2024, 45 (4): 32-42.   DOI: 10.13438/j.cnki.jdxb.2024.04.004 Abstract （154）      PDF（pc） （775KB）（102）       Knowledge map    Save Freedom penalty is the principal form of penalty in countries all over the world,and China is no exception.Of the five principal forms of penalty prescribed in the criminal law,four are in the form of freedom penalty,and although one is the death penalty,mostly it is a suspended sentence of imprisonment.Different from property penalty,qualification penalty,life penalty,etc.,the enforcement of freedom penalty with the content of deprivation or restriction of personal freedom can not only meet the needs of the adaptation of crime and punishment,but also better realize the justice of sentencing because of its divisible and time-space continuity.Changing the "term of imprisonment" into the "term of rehabilitation",it aims at transforming criminals into law-abiding citizens.However,due to the inherent contradiction between the essence of penalty and the goal of rehabilitation,how to alleviate this contradiction has become a difficult problem in the enforcement of freedom penalty.The enforcement power of freedom penalty is composed of different powers such as punishment,supervision and rehabilitation,and has different legal attributes such as criminal justice,special administration and position rights.Therefore,to break through the paradox of enforcement,the enforcement of free penalty needs to follow different operating procedures,normative requirements and supervision paths according to different powers. Reference | Related Articles | Metrics | Comments（0） Select The Realistic Demand and Realization Path of the Collaborative Legislation within the Yellow River Cultural Protection Area WANG Binhui, ZHOU Rui Journal of Jishou University(Social Sciences Edition)    2024, 45 (3): 108-116.   DOI: 10.13438/j.cnki.jdxb.2024.03.011 Abstract （133）      PDF（pc） （773KB）（85）       Knowledge map    Save The collaborative legislation within the Yellow River cultural protection area is the key to the protection and inheritance of the distinctive regional cultural characteristics,and it is also the need to implement the Yellow River Conservation Law,promote regional economic growth and ensure the local jurisdiction in cultural protection.However,the existing decentralized collaborative legislation has intensified the imbalance of the Yellow River cultural protection,resulting in insufficient legal protection of cross-regional cooperation.To carry out collaborative regional legislation,first,those who are responsible for implementing collaborative legislation should delicately balance the demarcation between national legislation and regional collaborative efforts,as well as between regional collaborative legislation and individual local legislation;second, in response to the specific needs of cultural protection,a tightly integrated legislative model should be adopted for collaborative efforts.This involves selecting an appropriate collaborative legislative framework through mutual consultation,building consensus on the content of regional collaboration,and standardizing and unifying the regional coordination mechanism.And finally, in terms of the specific collaborative legislation operation mechanism,we should construct collaborative legislation joint committee,share collaborative legislation information,carry out collaborative assessment and identify the "pseudo-collaboration". Reference | Related Articles | Metrics | Comments（0） Select The Judgment Model of the Limit of Ecologicalization of Tort Law and Its Application:Focusing on the Chinese Civil Code HU Jing, DONG Yijun Journal of Jishou University(Social Sciences Edition)    2024, 45 (2): 104-117.   DOI: 10.13438/j.cnki.jdxb.2024.02.012 Abstract （102）      PDF（pc） （883KB）（80）       Knowledge map    Save The ecologicalization of tort law is necessary to meet the needs of the times,but it should be properly restricted.The binary model of function and degree can be used to judge the limit of the ecologicalization of positive law.If the function of positive law is judged to protect public welfare,it can be considered to exceed the ecological limit,because the function of tort law as private law is to protect personal interests;if it is to protect personal interests,it will be decided whether this law satisfies the ask of degree then.According to the binary judgment model,the legislative evaluation of the imputation principle,causality,liability and exemption reasons stipulated in the Civil Code is that the overall ecologicalization exceeds the limit.Considering the nature of interests and the logic that environmental torts can be divided into indirect and direct modes,the existing rules should be improved correctly by means of judicial interpretation.Firstly,the principle of fault liability should be applied to the direct environmental torts and the indirect environmental torts are subject to the principle of presumption of fault when the property rights are damaged.Secondly,the presumption of causality shall not be applied to the direct environmental infringement,and when the right to health or the right to life is impaired,the requirements for certification standards shall be reduced appropriately.Thirdly,the rules of the punitive damage should be explained strictly.Finally,the provisions on the exemption of liability of gross negligence and others shall be added to the victim's fault rules,and the tortfeasor should be exempted from the middle liability when the third party causes the harm completely. Reference | Related Articles | Metrics | Comments（0） Select The Realistic Possibilities of the Social Co-governance of Law and Folk Customs—from the Perspective of Structural Functionalism CHEN Wenhua Journal of Jishou University(Social Sciences Edition)    2024, 45 (2): 118-129.   DOI: 10.13438/j.cnki.jdxb.2024.02.013 Abstract （88）      PDF（pc） （856KB）（75）       Knowledge map    Save The pluralistic co-governance of law and folk customs should be a necessary option for the governance of social rules.In the view of structural functionalism,the premise of functional coupling between law or folk customs and other subsystems (political or economic subsystems) is that the conditions for its existence are provided by itself or other subsystems of social structure (political or economic subsystems).The law changes from the one-dimensional value law to the contractual positivist law,and the national coercive force is not the constituent element but the implementation guarantee.The law is mainly characterized by formal rationalization and universal application,and is inherent in the contractual society,while folk customs are original,special and harmonious,embedded in the narrow cooperative society,and guaranteed by the recognition of value and the pressure of public opinion.Contemporary Chinese society is neither a contractual society nor a cooperative society,but a mixture of contractual and cooperative factors.The governance of social rules in China should turn to the dual co-governance of law and folk customs. Related Articles | Metrics | Comments（0） Select The Theoretical Implications and Discourse Strategies of International Human Rights Struggle—Based on the Proposition of the Universality of Human Rights HONG Lewei Journal of Jishou University(Social Sciences Edition)    2024, 45 (2): 130-139.   DOI: 10.13438/j.cnki.jdxb.2024.02.014 Abstract （95）      PDF（pc） （821KB）（78）       Knowledge map    Save The main field of international human rights struggle is human rights discourse,which is closely related to the theoretical proposition of"universality of human rights",a proposition containing profound struggle itself.The deconstruction of the legitimacy of "universal human rights",the main tactics of human rights intervention in the West,is an important part of the struggle of human rights discourse.The key to deconstruction of it lies in the separation of long-term binding relationship between "universal human rights" and the Universal Declaration of Human Rights and the principle of universality of human rights,so as to fundamentally shake the legitimate foundation of its "universality".The normative expression of the principle of universality of human rights in the Universal Declaration of Human Rights at least contains the dual universal requirements of "human rights subject" and "right content".The presentation and comparison of the meaning of this norm shows that the West has seriously deviated from the principle of universality of human rights both in concept and practice.The so-called "universal human rights" is undoubtedly hypocritical and limited,and it absolutely cannot represent the universal principle of human rights.Comparatively speaking,the achievements,concepts and practice of human rights in the development of China's human rights are the models that truly fit and demonstrate this principle.Therefore,in order to carry out the struggle of human rights discourse nowadays,especially in the expression of the proposition of universality of human rights,we should actively compete for the representative and discourse right of the principle of universality of human rights,and construct the "universality" position of Chinese human rights discourse,so that the principle of universality of human rights is no longer monopolized and controlled by Western discourse,and China can further enhance international influence and discourse right of human rights. Reference | Related Articles | Metrics | Comments（0） Select Type Analysis and Normative Path of the Duty of Supervision of Supervisory Authorities WEI Yuening, ZHAO Weizhong Journal of Jishou University(Social Sciences Edition)    2024, 45 (1): 46-57.   DOI: 10.13438/j.cnki.jdxb.2024.01.005 Abstract （241）      PDF（pc） （822KB）（188）       Knowledge map    Save The duty of supervision is a kind of supervision power behavior stipulated in Article 11 of the Supervision Law of our country.In essence,the duty of supervision is a systematic and comprehensive preventive power to prevent the alienation of public power.Based on the responsibility orientation of discipline inspection and supervision organs and the realization effect of supervision behavior,the responsibility of supervision can be divided into two types:the indirect type and direct type.The former is based on the prevention characteristics,which is an indirect supervision behavior carried out for unspecific objects,while the latter is a case-based direct supervision behavior aimed at specific objects based on prevention and punishment characteristics of supervision.In practice,the indirect supervision faces the risk of insufficient effectiveness,and direct supervision faces the risk of behavior deviation.In order to solve the above problems,we should carry out normative regulation by strengthening the effectiveness of indirect supervision in a refined way,and regulating the application of direct supervision in the way of normative constitutive elements. Reference | Related Articles | Metrics | Comments（0） Select Judicial Guarantee Mechanism of River Basin Ecological Environment Based on System Theory XIAO Ai Journal of Jishou University(Social Sciences Edition)    2024, 45 (1): 58-72.   DOI: 10.13438/j.cnki.jdxb.2024.01.006 Abstract （290）      PDF（pc） （917KB）（235）       Knowledge map    Save The judicial guarantee of river basin ecological environment is faced with the conflict between the current judicial system and the systematic integrity of river basin ecological environment,which is also the"relationship" connotation of the river basin ecological environment and its governance system.In terms of judicial guarantee mechanism,the system theory should be used as the methodology to rationally position the river basin ecological environment justice from the aspects of judicial function,judicial function,judicial efficiency and integration,etc.,to improve the judicial specialization on the premise of necessity and the principle of persistence and innovation.In other words,on the basis of giving priority to the application of administrative and ordinary judicial system tools of ecological environment governance,limited centralized jurisdiction is implemented after the diversion of ecological environment cases in the river basin according to the complexity,scope and degree of influence.The restoration of the river basin ecological environment should be placed in an overwhelming position,the structure of the collegial panel optimized,the public interest litigation of environmental protection organizations strengthened,and the public interest prosecution and procuratorial public interest litigation distinguished to improve the judicial specialization mechanism.From the perspective of system theory,judicial cooperation has an important institutional value that cannot be ignored in the judicial guarantee mechanism.In particular,cooperation should be included in the main responsibilities of the judiciary,and the standardization and institutionalization of the judicial cooperation mechanism of the river basin ecological environment should be comprehensively strengthened. 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