When Justice Can’t Be Done: The Obligation to Govern and Rights in the State of Terror

This article explores a view nearly absent from modern political theory, that there is a duty to create and secure government which imposes on some a duty to govern. This duty is grounded in philosophers as disparate as Aquinas, Locke, Hobbes and Finnis. To fail one??s duty to govern, especially over the range of goods that can only be secured by government, is to have committed a wrong against another. If there is an obligation to govern that is rooted in the common good, then one might believe there is an obligation to maintain a government which pursues the common good. After disentangling the duty to govern from political duties which are much better explored, I focus on the more subtle question of how political legitimacy and the obligation to obey the law may clash with a duty to govern. Again, it is surprising that this claim can be located in scholars as disparate as Kant, Hobbes and Finnis. Yet in each example these thinkers give us, we are troubled by the tension between the duty to maintain a government and its conceptual fellow travelers, legitimate government and the obligation to obey. Nor is this question one restricted to abstract political philosophy. Particularly troubling are scenarios in which a threat to governance might lead to a reasonable belief that the government must maintain itself by taking actions which appear illegitimate. A scenario where a government must racially profile or violate civil liberties to guard against threats to the ability to govern brings the problem to life. Difficult moments of American history ?C the interment of the Japanese during World War II, racial profiling after September 11th and the use of torture by the United States government were surely mistakes. But they make live the perceived and potential clash between a duty to maintain a government, legitimate government and our duty to obey the law.     

自然之债源流考评

自然之债是经由诉讼不能实现的债,债务人的履行或者承诺履行将激活债对债务人的强制力,债务人一旦自动履行即不得请求返还。自然之债是债的"亚类"。用"自然"加"债"来表达有两个含义:一是它不同于一般的作为法定之债的民事债,无论是债因还是效力;二是它不同于非债,不是纯粹的社会、道德或者宗教义务。用"自然之债"将"债"与"自然"连接可以体现出,这一类债的债务人可以拒绝履行,但一旦履行它就是债的履行而非不当得利或者赠与。这一点同罗马人区分契约与准契约的思路如出一辙。罗马人将"准"与"契约"相连,就将介于契约与侵权之间的地带统一起来。同样,"自然之债"也统一了处在法定义务与纯粹的社会义务之间的灰色地带。     

From a Pluralism of Grounds to Proto‐Legal Relations: Accounting for the Grounds of Obligations of Justice

In this paper I discuss critically Mathias Risse's paper “Responsibility and Global Justice.” First, I argue that for Risse's pluralist account of the grounds of justice to hold together, there is need to presuppose a monist standpoint which ultimately contributes to grounding principles of justice. Second, I point out that Risse's understanding of obligations of accountability and justification is rather narrow in that it functions as an addendum to obligations of justice. Conversely, I will suggest that the obligation of accountability plays a deeper role: The conditions that ground it feature at the same time among the grounds of obligations of justice. Accordingly, the kind of relation that gives rise to a duty among agents to account for their actions must be in place when obligations of justice obtain. Following on from these remarks I will adumbrate an alternative account of the relation which grounds (enforceable) obligations of justice.     

Politics in a State of Nature

Aristotle thought we are by nature political animals, but the state‐of‐nature tradition sees political society not as natural but as an artifice. For this tradition, political society can usefully be conceived as emerging from a pre‐political state of nature by the exercise of innate normative powers. Those powers, together with the rest of our native normative endowment, both make possible the construction of the state, and place sharp limits on the state's just powers and prerogatives. A state‐of‐nature theory has three components. One is an account of the native normative endowment, or “NNE.” Two is an account of how the state is constructed using the tools included in the NNE. Three is an account of the state's resulting normative endowment, which includes a (purported) moral power to impose duties of obedience. State‐of‐nature theories disagree about the NNE. For Locke, it included a “natural executive right” to punish wrongdoing. Recent social scientific findings suggest a quite different NNE. Contrary to Locke, people do not behave in experimental settings as one would predict if they possessed a “natural executive right” to punish wrongdoing. Moral reproof is subject to standing norms. These norms limit the range of eligible reprovers. The social science can support two claims. One, is that the NNE is (as Aristotle held) already political. The other is that political authority can be re‐conceived as a matter of standing—that is, as the state's unique moral permission coercively to enforce moral norms, rather than as a moral power to impose freestanding duties of obedience.     

《民法通则》规定的民事责任——从物权法到民法典的规定

权利、义务、责任是法律的基石,法律的内容是在权利、义务、责任的基础上展开的,民法也不例外。我国《民法通则》关于民事责任的规定值得重视,物权法和未来的民法典应当继受《民法通则》创立的民事责任制度。未来我国民法典应当借鉴《德国民法典》和旧中国民国时期的民法典,设立物权编和债权编,但是不必规定物权请求权,可将物权请求权转变为侵权责任,规定在民法典的侵权责任编中。将物权请求权转变为侵权责任,不仅不会破坏物权与债权的科学体系,而且会使物权与债权的区分更加明晰,使债与责任的区分更加明晰。     

Legal obligation as a duty of deference

An enduring question in political and legal philosophy concerns whether we have a general moral obligation to follow the law. In this paper, I argue that Philip Soper’s intuitively appealing effort to give new life to the idea of legal obligation by characterising it as a duty of deference is ultimately unpersuasive. Soper claims that people who understand what a legal system is and admit that it is valuable must recognise that they would be morally inconsistent to deny that they owe deference to state norms. However, if the duty of deference stemmed from people’s decision to regard the law as valuable as Soper argues, then people who do not admit the value of the state would have no duty as such to defer to its norms. And, more importantly, people who admit the value of the state would have a duty not to defer to particular norms, namely those norms which violate the values that ground their preference for a state. This critique of Soper operates within his parameters by accepting his claim that moral consistency generates reasons to act. Even on those terms, Soper’s defence of legal obligation as a duty of deference is unpersuasive. I wish to thank John Tasioulas, Joseph Raz, Bill Edmundson, Adam Cureton, the editors and referees of Law and Philosophy, and the participants of the Society for Applied Philosophy 25th anniversary conference, July 2005, St Anne’s College, Oxford.     

行政主体的义务范畴研究

行政主体的义务范畴是一个非常重要的行政法学理论问题,在现代法治政府之下政府行政系统的责任越来越突出,“责任政府”概念也成了政治学、行政法以及行政法学解释相关问题的基本概念。在责任政府这一现代理论的指导下,行政主体对公民、社会、国家承担义务就自然而然地成了行政法治以及行政法理论的核心问题,与之相对应,行政主体义务的基本范畴就成了近年来各国行政法学关注的热点问题。行政主体应具有推行宪法和法律,接受立法和司法监督,改善社会环境和促进社会发展,使国内事务与国际事务接轨等宪法义务;具有为行政相对人提供利益和保护,为行政行为说明理由和承担赔偿责任等行政法义务。     

On the optimality of a duty-to-rescue rule and the cost of wrongful intervention

In common law legal systems, there is no legal duty to rescue persons in danger. By contrast in code-based legal systems, the principle of duty to rescue does apply. What is behind this difference? To answer this question, we develop a new model extending the reach and strength of the standard civic duty game by taking into account the cost of wrongful intervention. We use this model to analyze and compare three policy options: doing nothing, adopting a duty-to-rescue rule, and encouraging would-be rescuers. We show that a duty-to-rescue rule is more likely to be welfare enhancing when the cost of inappropriately intervening is low, and that, in certain cases, encouraging would-be rescuers is preferred by a representative citizen to both a duty-to-rescue rule and no-rule. Finally, we offer an explanation for the choices made in the USA and France as to whether to use rescue laws.     

The ethics of profession in dental medicine

Changes in technology, public policy, and the multi-dimensional relationships of professionals have resulted in renewed interest in the ethics of health care practitioners. This article considers the obligation of dentists to a life of morality in common with all humanity. Additional responsibilities are incurred by a practitioner of dental medicine in keeping the moral rule to "do your duty." These duties are explicated utilizing three classical characteristics of a professional. The Principles of Ethics and Code of Professional Conduct of the American Dental Association are the dental profession's guide to ethical conduct. The Principles and Code are traced in their development, reviewed in their content, and critiqued in comparison to the ethical obligations of the dentist as previously delineated. The use of the Principles and Code as a basis for professional self-government is evaluated.     

董事民事责任三论

在公司中董事司业务执行之职,对公司负有忠实义务和善管义务。如出现义务违反,则需要承担相应的民事责任;董事业务执行中因不当行使自由裁量权,而违法损害第三人利益、造成损失的,董事个人也应当向第三人承担民事责任。董事对公司的责任,公司要依法定程序予以追究、限制或免除;董事对第三人的责任,公司也可以依照规定程序经债务履行承担而予以实际免除。     

试论我国行政登记制度及其立法完善

我国行政登记制度存在严重缺陷 ,突出表现在行政登记机关的登记审查批准权很大 ,几乎不受什么制约 ,但却不承担相应的义务和责任 ;行政登记没有明确的公信力。在我国加入WTO后 ,应和海外立法接轨 ,明确特定行政登记的公信力和国家责任 ,健全和完善我国的行政登记制度。     

The pregnant woman and the good Samaritan: can a woman have a duty to undergo a caesarean section?

Although a pregnant woman can now refuse any medical treatment needed by the fetus, the Court of Appeal has acknowledged that ethical dilemmas remain, adverting to the inappropriateness of legal compulsion of presumed moral duties in this context. This leaves the impression of an uncomfortable split between the ethics and the law. The notion of a pregnant woman refusing medical treatment needed by the fetus is troubling and it helps little simply to assert that she has a legal right to do so. At the same time, the idea that a pregnant woman fails in her moral duty unless she accepts any recommended treatment or surgery--however great the burden--is also not without difficulty. This article seeks to find a way between these two somewhat polarized positions by arguing that, instead of being a question primarily about whether legally to enforce moral obligations, the 'maternal-fetal conflict' begins with previously unrecognized difficulties in determining when a woman's prima facie moral rights invoked in the treatment context should 'give way' to the interests of the fetus. This difficulty is mirrored within the law. Thus, how can we tell when a pregnant woman has the moral or legal duty to submit to a caesarean section? Seen in this way, the conflict is a problem which lies at the interface between moral and legal rights and duties, showing that there are important conceptual links between the ethics and the law. Against this background, this article explores the limits of a pregnant woman's right to bodily integrity by focusing upon the idea of her moral duty to aid the fetus through her body. Here we find difficulties in determining the existence and extent of this somewhat extraordinary duty. Such a duty is contrasted with both negative and positive duties toward others in the course of 'general conduct.' Attention to the social context of pregnancy and the refusal of treatment within this is also instructive. Overall, the purpose is to foster understanding and acceptance of the current legal position.     

Protecting the Right to Housing in the Aftermath of Natural Disaster: Standards in International Human Rights Law

In 2006, the United Nations High Commissioner for Refugees reportedthat an average of 211 million people each year were directlyaffected by the accumulated impact of natural disasters.¹ Thisis approximately five times the number of people thought tohave been affected by conflict over the past decade.² It iscommonly expected that, as a result of climate change, populationgrowth and inappropriate urbanisation, the incidence, severityand impact of natural disasters will continue to rise. And yetwhile the obligations of states in situations of armed conflicthave been extensively debated, the applicability of human rightslaw in the aftermath of natural disaster has not been so widelyexamined by regional or international human rights bodies. Thispaper considers the obligations of governments in the aftermathof natural disasters, with a particular focus on the right tohousing. The applicability of human rights law (and specificallyeconomic, social and cultural rights) in the aftermath of naturaldisaster is considered in a general sense, followed by a discussionof the content of the right to housing, and the obligationsof governments to respect, protect and fulfil this right inthe course of responding to disaster. The question of whetherstates have an obligation to provide restitution, compensationor other form of reparation to those who have lost homes, landand property by reason of natural disaster is also discussed.The paper draws on examples from the Indian Ocean tsunami (2004),the Pakistan earthquake (2005) and the South Asian floods (2007),and identifies specific elements of government obligations thatare of particular importance in ensuring the right to adequatehousing in the aftermath of natural disaster.     

危难救助者的行政补偿研究

在现实生活中,危难救助者的损失往往得不到应有的赔偿或补偿,导致人们对危难救助行为心存疑虑.然而,随着风险社会的出现及其程度不断加深,在防范和化解风险过程中,一种最有效的途径无疑是让社会大众共同分担救助他人的义务,这相当于为国家履行职责.因此,国家的责任不可或缺.根据行政补偿理论中的公共负担平等说,国家应当对危难救助者给予行政补偿,以弥补其因救助行为所造成的损失.     

论民事权利、义务和责任的关系

侵权行为法在民法典中居于何种地位?传统民法理论对此尚无法做出满意回答。若将民事权利、义务和责任视为属于同一个位阶,三位一体统一于民事法律关系之中的概念,而视人格权、物权、知识产权、债权与其相对应的义务(债务)为此三个基本概念的下位概念,则可以推导出侵权行为产生的不是债而是民事责任,侵权行为法主要是绝对权的救济法,应当从债法中独立出来。侵权责任与违约责任共同组成一个完整的民事责任体系,实践着私法自治的功能。     

A Duty‐Free Europe? What's Wrong with Kochenov's Account of EU Citizenship Rights

This article disputes the recent argument of Dimitry Kochenov advocating an ‘EU Citizenship without Duties’. His thesis rests on an untenable form of philosophical anarchism that overlooks the role played by our political obligations to state structures in securing rights. At best, his argument suggests a ‘thin’ form of EU citizenship that allows European citizens to choose which of the Member States they wish to become morally obliged to. A ‘thicker’ form of EU level citizenship could only arise by creating civic obligations at the EU level, the position he rejects. To the extent certain Court of Justice judgments in this area reflect parallel reasoning to Kochenov's, they too suffer from a similar failure to appreciate the role of civic duties to particular Member States (or, eventually, the EU) in creating and securing the status of citizens as equal rights bearers.     

海难人命救助的法律义务与现实困境之间矛盾的破解

在海上救助遇险人员历来是船长的义务,但现实中却经常出现船长等责任主体漠视海上人命的极端案例。海上人命救助人的义务过重,加之缺少有效激励与保障机制,使得人命救助人面临巨大的道德风险。根据国际法与国内法的规定,人命救助人面临着义务与权利不对等、救助人命的系统性规制缺位、缺少优先救助人命的强制性规定等多种不利因素。现行海难救助国际公约和英国海商法已经将海难救助客体作了扩大,美国“好撒玛利亚人法”对救助人的责任做出了限制,适用准合同理论确认了救助人报酬的取得依据,有效地保护了救助人的救助积极性。借鉴先进立法经验,结合海难救助的实际,有关国际法律和我国《海商法》应明确生命权属于海难救助的客体,承认独立的人命救助报酬并建立报酬支付制度体系,结合优先救助人命的强制性规定,以法律的系统性调整促进海难人命救助的发展。     

Promises Schmomises

In this piece, I argue that promises need not be kept just because they were made. This is not to say, however, that unwise, unhappy, and unfortunate promises do not generate obligations. When broken promises will result either in wrongful gains to promisors or wrongful losses to promisees, obligations of corrective justice will demand that such promises be kept if their breach cannot be fully repaired. Thus, when a broken promise will constitute a deliberate loss transfer for personal gain, the duty not to exact unjust enrichment (a wrongful gain) will require a promisor either to honor her promise or craft a means of ensuring that the promisee’s impoverishment is not traded for her enrichment. And when a broken promise will constitute the culpable imposition of a reliance-based injury on a nonculpable promisee (a wrongful loss), the duty to make others whole when one has purposefully, knowingly, or recklessly injured them will require one either to keep one’s promise or to fashion a remedy for its breach that ensures that the promisee is left no worse off than he would be had the promise not been made. This account explicitly parts ways with normative powers theories of promising. It places no weight at all on the raw fact that a promise has been made. Instead, it locates the gravamen of a promissory violation in the harm that is caused to a promisee who nonculpably relies upon and changes her position in anticipation of the prediction about the promisor’s future conduct that is embedded in his promise. Absent any adverse reliance on the part of a promisee, there is nothing that gives rise to an obligation of performance or repair on the part of the promisor. But this account is also to be distinguished from utilitarian theories that take promises to be instruments of wealth maximization that properly give way whenever the reason for honoring them speaks in favor of violating them. On my account, the balance of reasons for action that determines the morality of performance includes deontological rights and duties, agent-relative permissions, and Hohfeldian liberties. As I shall argue, even if one rightly concludes that one has no duty either to keep a promise or to craft a remedy for its breach, one must nevertheless remember that virtue requires one to be or become the kind of person who often goes beyond the call of duty. But the fact that virtue often requires us to do what we have no duty to do should not cause us to confuse its conditions with the conditions of right and wrong action. We have a duty to keep promises or to otherwise protect the reliance interests that they generate only when failing to do so will lead either to our own unjust enrichment or to others’ unjust injury. And this means that we have a duty to keep promises in far fewer circumstances than is commonly believed.     

论未成年人受侵害的过失相抵

与加害人的过失不同，受害人的过失并非违反不得侵害他人权益的义务，而是违反了对自己的保护义务，此种义务在法律上是一种不真正义务。对于受害人的过失的判断，应以受害人尽到与处理自己事务一样的注意义务而非善良管理人的注意义务为标准。为保持现行立法与司法的稳妥，可以规定：10周岁以上的未成年人具有过失相抵能力，10周岁以下的未成年人不具有过失相抵能力。在未成年人遭受他人侵害，其监护人未尽监护职责导致损害的发生或扩大的情况下，若监护人违反善良管理人的注意义务，未成年的受害人应该承担监护人的过失，在斟酌损害赔偿数额时，实行过失相抵。