The Limits of Emotivism. Some Remarks on Professor von Wright's Paper "Valuations"

According to the old tradition in ethical theory that Professor von Wright attempts to revive in his paper "Valuations," value judgments are to be viewed as nothing but expressions of approving or disapproving emotional attitudes. The present paper argues against this view on the grounds that (i) to have an emotional attitude towards an object o does not merely mean to express our liking or disliking of it, but to make a genuine (i.e., true or false) judgment about o ; and that (ii) this judgment, and not the emotional attitude o arises in us, is what we are justified to properly call a "value judgement."     

Justice in the Distribution of Benefits

Abstract. The welfare state raises questions concerning the just distribution of benefits. The proceeds from tort liability and insurance supplementing or replacing such liability are benefits that must be included in this context. The author argues that neither distribution based solely on the needs of various persons injured nor considerations of economic efficiency are sufficient. Commutative justice must be considered relevant as well. The ultimate valuations cannot be justified by rational arguments alone but such arguments must be taken into account in order to reach legitimate results.     

A question of values: Conservatives and the culture of poverty

Every society has within it some individuals and groups who are successful and some who are less successful. Explanations for these differences range from the political to the economic and from the cultural to the religious. For American conservatives, the differences in individual levels of achievement can be explained primarily in cultural terms. The conservative mythology argues that there are clearly superior and clearly inferior cultural values and that good values produce successful individuals. This article deals with the fundamentally tautological nature of this argument: Why is so-and-so successful? Because he or she has better values. How do we know he or she has better values? Because he or she is successful. After elaborating this intellectual problem, an empirical test is made of the existence of different values among America's social groups. Using census data and national survey data, the personal goals and attitudes of various societal groups and their relative economic accomplishments are presented and compared. This analysis demonstrates that few of the culture-based differences which are asserted by conservatives can be validated empirically.     

要物合同之存在现状及其价值反思

实践中对于要物合同概念存有不当认识。要物合同应具有债权性、"要物"强制性等属性,以此为论,要物合同在我国现行法上几无存在。而以理论视角分析,要物合同的存在即非其本性使然,亦不足以从价值层面充分正当化,故应废弃要物合同,而以任意性规范的属性与功能为着眼点,结合有名合同对于社会典型交易行为的反映,去有效规制传统要物合同。     

大胆尝试,谨慎操作——论医疗公证中的若干问题

本文从真实性、合法性、可行性三个角度论证了医疗公证可以成为公证业务的新领域 ,医疗公证可以大胆尝试。但同时指出 ,由于相关法律不健全 ,配套条件不完善 ,尤其是监督机制的缺失 ,医疗公证存在被滥用的可能 ,因此 ,医疗公证在实践中必须谨慎操作。最后作者对如何遏制滥用医疗公证提出了自己的建议。     

Anti-Discrimination Rights Without Equality

Anti-discrimination rights are nearly always thought to be justified or explained by equality, although the precise nature of this relationship is rarely considered. In this article I consider the two most plausible relationships, both of which are commonly at least implicitly asserted: that anti-discrimination rights are deontic equal treatment norms, and that anti-discrimination rights are instrumentally aimed at achieving telic equality. I try to show that, as a conceptual matter, anti-discrimination rights are not equal treatment norms: they do not require that all people (perhaps in a certain category) are treated the same. They allow for different treatment, but they prohibit different treatment only on some grounds. Although the suggestion that anti-discrimination rights are instrumentally aimed at telic equality (in some dimension) is conceptually plausible (like all instrumental relationships), it is most unlikely that anti-discrimination rights can be justified on this ground.     

不能犯的判断方法——危险概念的理性探析

不能犯的认定过程就是危险的破译过程 ,而危险说之主观的未遂论和客观的未遂论 ,分别只就某个片面来看待危险 ,客观的未遂论又从片面之片面展开分析 ,把行为的危险和作为结果的危险之一个问题的两个方面对立起来 ,未能统一地、总体地对待各部分的危险性 ,以至于各说均不同程度地面临顾此失彼的选择困境 ,因而不能得出共识的结论。本文紧紧围绕行为的性质这个核心问题 ,归纳了不能犯认定上的“八字法” ,即“质量、有无、是否、真假”。对于手段不能的情况 ,采取“质量判断法” ,即看行为人所采用的手段与未能达成的危害结果之间 ,是属性不妥还是数量不够 ,前者是不能犯 ,后者则为未遂犯 ;对于客体不能的情况 ,采取“有无判断法” ,即看行为人所指向的客体是否存在 ,不存在是不能犯 ,存在则是未遂犯 ;对于主体不能的情况 ,采取“是否判断法” ,即看行为人是否具备刑法所规定的意图之罪的主体资格 ,不具备的是不能犯 ,具备的则是未遂犯 ;对于状况不能的情况 ,采取“真假判断法” ,即看行为人实施行为时 ,刑法所规定的构成该罪的特定情景状态是否真实 ,不真实的是不能犯 ,真实的则是未遂犯。     

Norm Propositions Defended

Abstract .
The author replies to some semantic and epistemic criticisms of the concept of norm proposition. The author's contention is that though some, many, or most norm formulations are uncertain or indefinite with respect to their validity or interpretations, insofar as at least some norms with definite content definitely belong to the legal order, the concept of norm proposition can be maintained to be sound. Three such cases are singled out. Finally the author argues for a consensus theory of legal order focusing on the concept of valid norm conceived either as a norm accepted or as a norm to be accepted by the legal community.*     

Defeating the Inference from General to Particular Norms*

Abstract. The author argues that in order to maintain, with the later Kelsen, that particular norms are not deducible from general norms, it is unnecessary to deny (1) that norms are propositional, (2) that norms have truth value, (3) that there are normative facts, or (4) that norms fall within the compass of logic. It is claimed that general norms, like many generalizations in science, are not, typically, unrestricted universal generalizations, but generalizations of a different kind, which have sometimes been called normic generalizations. Normic generalizations may have truth value and describe facts; and there is no obvious reason for thinking that they fall outside the compass of logic. Yet they do not deductively imply the instances which fall under them. Exceptions to a generalization of this sort need not constitute falsifying instances; in some cases, at least, they serve rather to qualify the scope or power of the generalization. The logic of such generalizations is thus not deductive. Granting that general norms are typically of this kind, we may accept Kelsen's conclusion about the non-deducibility of particular from general norms without accepting the grounds upon which he accounted for this fact.     

Ought-Sentences and the Juristic Description of Rules

Abstract .
According to the normative theory of legal science, juristic ought-sentences describe rules, since legal science just deals with rules, and rules cannot be described but by means of ought-sentences. The author challenges this view. Two different constructions of "describing rules" are proposed: Namely, either interpreting or stating the validity of rules. "Interpreting rules," in its turn, can be understood in three different senses: listing all the possible meanings of rule-formulations, reporting the different interpretations a rule-formulation has in fact received by courts, or ascribing meaning to rule-formulations. However, the author argues that ought-sentences are not the proper tools to accomplish such tasks. At the same time, juristic ought-sentences cannot be understood as validity statements, since they neither mention any rule whatsoever, nor include the term "valid." Further, if validity-statements were ought-sentences, their logical behaviour would reflect the logic of rules themselves. However, as the late Kelsen argued, things do not run this way, since two inconsistent ought-sentences, if understood as validity statements, can paradoxically both be true, as well as both false. Hence, validity-statements cannot be reduced to ought-sentences iterating the rules which they (are supposed to) refer to.     

Normological Inferences and the Generation of Legal Norms

Abstract. This paper is an answer to Mazzarese (1993) in which the author argues that Kelsen's normological scepticism is a consequence of his theory of legal dynamics and of his views on the relation between higher and lower norms. The author rejects this tenet and reasserts his opinion that there is an essential break between the classical Pure Theory of Law and Kelsen's late doctrine. Therefore an inquiry is justified whether the theses and concepts of the classical Pure Theory are compatible with normological scepticism in Kelsen (1979). Mazzarese's comments on neo-institutionalist views on legal validity are based on a misinterpretation of this conception.     

The normative foundation of social science in law revisited: A reply to melton

Conclusion The primary thrust of Melton's argument is that opposition by organized psychology to the Bork nomination would have been consistent with the jurisprudential philosophy on which social science in law, as a scholarly movement, is based (p. 317). If APA is to justify opposition to Bork or future Supreme Court nominations (e.g., Souter), there should be a clearly identified normative foundation that directly leads to such advocacy. A stance based partly upon scholarship thatimplies reverence for constitutional values and partly upon preambles and principles of an ethical code is too slender a reed from which to cast APA's institutional support for a Supreme Court candidate. When such a stance is adopted, APA unfortunately becomes one of an increasing number of organizations attempting to influence political decisions by claiming allegiance to values consistent with democracy.Advocacy based on a normative foundation of social science in law jurisprudence could be justified by APA if, and only if, (a) there is an identifiable SSL jurisprudence, (b) there is consensus on the values underlying such a jurisprudence, and (c) adherence to these values argues against the nomination of Bork or others (e.g., Souter) to the Supreme Court. Because these conditions currently cannot be met, organized opposition to Supreme Court nominations cannot be justified on a normative foundation of SSL jurisprudence.Editor's Note: This issue marks the introduction of theComments section. Readers are invited to submit brief comments on articles published in this journal.     

The Closed Mind and the Judgement of Crime: A Replication of the Sellin-Wolfgang Index

The judgement of the seriousness of delinquent events was interpreted as a “measurement of consensus regarding social norms and cultural values. Therefore, it was hypothesized that the evaluative mode of orientation would be used in the judgement process and that personality variables (which use the cognitive mode of orientation) would not influence consensus obtained using the Sellin-Wolfgang psychophysical method. Sex and dogmatism were tested as independent variables.

The hypothesis was supported in cases where the element of damage in the delinquent event was clear. In cases where the amount of damage presented a problem, the independent variables explained significant amounts of variation in the dependent variable. It was concluded that in these latter cases, the cognitive mode of orientation is used, producing less consensus.

Methodological difficulties inherent in the use of psychophysical scaling are discussed. It is concluded that these difficulties should be overcome before using the Sellin-Wolfgang index to measure cultural norms and values.     

A Cosmopolitan Philosophy of International Law? A Realist Approach

Analyzing different works and in particular Habermas' reflection on Kant, the author reconstructs, first, his approach to international law and his political and legal cosmopolitanism. Second, he presents some critical observations on Habermas' cosmopolitanism in the context of his more general discursive theory of law and state. In this perspective, he discusses the problems of peace and of the role of the United Nations, the strategy of protection of human rights, and the question of world citizenship. He argues that Habermas' cosmopolitanism is a radicalization of Kantian tradition based on a centralization of international power and a cosmopolitan law. Finally, he develops realist arguments in favour of a non-globalistic conception of international law. 1 Abstract by Giorgio Bongiovanni.
     

On the Nature of Norms

This paper deals with the question of how norms are to be conceived of in order to understand their role as guidelines for human action within various normative orders, particularly in the context of law on the one hand and conventional morality on the other. After some brief remarks on the history of the term “norm,” the author outlines the most significant general features of actually existing social norms, including legal and conventional norms, from which he arrives at two basic requirements on an appropriate conception of such norms: the actuality and the normativity requirements. On this basis, he enters into a critical discussion of Kelsen's highly influential view of norms, arguing that this view is doomed to failure. In the last part of the paper, the author scrutinizes the more promising “practice theory of norms” by H.L.A. Hart, which, in his view, also suffers from some shortcomings, but may be modified in a way that leads to a conception of social norms providing us with a plausible explication of their actual existence and their normative force.     

The Various Relations between Law and Morality in Contemporary Legal Philosophy

This paper is intended to be a summary of the author's views on the relationship between law and morality worked out over the past three decades in jurisprudence. The paper preliminarily clarifies the matter by isolating some lines of cleavage separating different questions askable about this relationship. With this done, the author argues for two theses. One, that judges are obligated to use morality in their decisions in particular cases; and two, that the morality judges are obligated to use in their judicial reasonings, is best seen as the natural lawyer sees it, namely, as being part of the law that obligates judges in their role as judges. The author not only believes these theses to be true; he also thinks that these theses are practically important, in that their acceptance by judges (and by the legal culture that reinforces judges) makes for better judging.     

Provocateurs

When a provocateur intentionally provokes a deadly affray, the law of self-defense holds that the provocateur may not use deadly force to defend himself. Why is this so? Provocateurs are often seen as just one example of the problem of actio libera in causa, the causing of the conditions of one’s defense. This article rejects theories that maintain a one-size-fits-all approach to actio libera in causa, and argues that provocateurs need specific rules about why they forfeit their defensive rights. This article further claims that provocateurs need to be distinguished from their cousins, initial aggressors, as initial aggressors engage in conduct that grounds the permissibility of the defender’s behavior whereas the provocateur’s behavior does not justify the respondent’s use of force against him. In addition, this article rejects that the basis of this forfeiture can be found in the doctrines surrounding when and why mitigation for provocation is appropriate for the respondent. Provocateurs forfeit their defensive rights for the very simple reason that they start the fight. This forfeiture occurs when they behave culpably, meaning that they subjectively appreciate that they are running the risk of causing force to be used against them and they engage in this behavior without justification or excuse. The question of when the provocateur’s behavior is justified is incredibly complex. It requires analysis of when it is that one is justified in increasing the risk of another’s wrongdoing. Any analysis of this justification must take seriously the liberty rights of the potential provocateur to engage in otherwise permissible behavior. Moreover, the determination of whether the provocateur is justified will turn on whether the later acts that he puts into motion are themselves justified. Thus, when Charles Bronson in the movie Death Wish presents himself as a victim so that muggers will attack him, the justifiability of his conduct in appearing as a vulnerable victim will turn on whether he is entitled to engage in this conduct, intending to later defend himself. This article argues that in Death Wish-type cases, the reason that the provocateur is not justified is because he becomes a vigilante, thereby usurping the role of the state and undermining rule of law values.