Cultural Sovereignty, Relativism, and International Human Rights: New Excuses for Old Strategies

Abstract. Although the Charter of the United Nations embodied an unresolved tension between state sovereignty and the inviolability of human rights, the fall of the Berlin Wall seemed to herald universal acceptance of the legitimacy of international concern for the protection of human rights. Since that time, however, the sovereignty of states has been pushed with renewed vigour under the guise of cultural sovereignty. Three examples of the role of cultural sovereignty in the international human rights sphere are proposed to demonstrate that the real interest of states is not the protection of cultural identity, but non-interference, supremacy and control. The paper identifies cultural sovereignty with cultural relativism and argues that the ideology of relativism, combined with the inadequacies of legal positivism, have significantly harmed the efficacy and character of the international human rights regime.     

司法判决过程中的道德论证

当非理性民权表达充斥司法判决之时,势必要澄清和阐明司法判决过程中的道德论证,势必要在柔性实证主义(分离命题)和吸纳性整体阐释(统一命题)之间交往商谈,从这个意义上说,道德是可以论证的。在司法判决现实情境之下,道德论证在大前提论证中起到经验论证、非实证和非经验论证两项作用。     

The Dual Nature of Law

The argument of this article is that the dual‐nature thesis is not only capable of solving the problem of legal positivism, but also addresses all fundamental questions of law. Examples are the relation between deliberative democracy and democracy qua decision‐making procedure along the lines of the majority principle, the connection between human rights as moral rights and constitutional rights as positive rights, the relation between constitutional review qua ideal representation of the people and parliamentary legislation, the commitment of legal argumentation to both authoritative and non‐authoritative reasons, and the distinction between rules as expressing a real “ought” and principles as expressing its ideal counterpart. All of this underscores the point that the dual nature of law is the single most essential feature of law.     

On the Thesis of a Necessary Connection between Law and Morality: Bulygin's Critique

In this article the author adduces a non‐positivist argument for a necessary connection between law and morality; the argument is based on the claim to correctness, and it is directed to an attack stemming from Eugenio Bulygin. The heart of the controversy is the claim to correctness. The author first attempts to show that there are good reasons for maintaining that law necessarily raises a claim to correctness. He argues, second, for the thesis that this claim has moral implications. Finally, he attempts to refute Bulygin's objection that the claim‐based argument for non‐positivism boils down to contradiction and triviality.     

人权精神的危机与拯救

在人类现代化的进程中,人权普遍性的展开与人权精神的衰微是同步的。作为现代化产物的文化相对主义和历史相对主义都在从根基上侵蚀着作为人权内核的否定性原则和批判性精神。拯救人权,有赖于一个超越现代性的视野,需要暂时剥离实证人权法理学的迷雾,进而对人权的现代历史性、政治工具性作出整体性反思和平衡性降解。     

On the Concept and the Nature of Law

Abstract. The central argument of this article turns on the dual‐nature thesis. This thesis sets out the claim that law necessarily comprises both a real or factual dimension and an ideal or critical dimension. The dual‐nature thesis is incompatible with both exclusive legal positivism and inclusive legal positivism. It is also incompatible with variants of non‐positivism according to which legal validity is lost in all cases of moral defect or demerit (exclusive legal non‐positivism) or, alternatively, is affected in no way at all by moral defects or demerits (super‐inclusive legal non‐positivism). The dual nature of law is expressed, on the one hand, by the Radbruch formula, which says that extreme injustice is not law, and, on the other, by the correctness argument, which says that law's claim to correctness necessarily includes a claim to moral correctness. Thus, what the law is depends not only on social facts, but also on what the law ought to be.     

Fundamental Rights: Between Morals and Politics

Starting from the impossibility of understanding fundamental rights from the standpoint of natural law doctrine or positivism, the author tackles the issue of rights from a realistic point of view, that is to say from the perspective of law and politics on the one hand, and from the perspective of public morality, on the other. Thus the foundation of fundamental rights is the meeting point of conceptions of social morality that are current in the modern world and the political aspect of the conception of pluralist democracy. Moreover, fundamental rights are considered an instrument to enable the social and moral development of human beings.     

广义的诠释论与统一的心理学

广义诠释论认为实证研究实际上也是一种诠释 ,它是包含了实证研究的诠释论。统一的心理学应当包括三个层次的研究模式 :传统的、狭义的诠释研究着重个案的、质化的分析 ,其目的是达到对具体的、个人的、临时的对话事件的理解 ;实证的诠释研究重在抽象、定量分析 ,以求作出具有普遍意义的推论和预测 ;广义的诠释研究综合以上两种研究策略 ,即对同一心理现象同时采取个案的、质化的和抽样的、量化的研究策略 ,既要具体的、个人的现象的丰富性和生动性 ,又要科学的抽象、量化、推论与预测 ,既要避免个案研究的局限 ,又要防止实证的抽象推论造成的对人类经验的割裂和肢解     

财产权对人格权的积极索取与主动避让

财产权与人格权的关系历来是充满争议和左右徘徊的问题。传统理论认为人格权是内在于人且具有绝对的不可侵犯性,在与财产权冲突时优先。但并非所有人格要素都是内在于人,物质性人格权,尤其是身体权和生命权具有绝对优先性,财产权面临生命和身体冲突须主动作出自我牺牲性避让,甚至是以作为方式提供救助,而一些非物质性人格利益并不具有内在性和绝对不可侵性,财产权则可以对其实施积极索取,但在一定临界点,也必须立即停止积极索取行为,只是这种避让无须作出自我牺牲,无须作为。     

从自然正义到自然权利

本文尝试站在启蒙与现代性的立场上反思自然权利论的源起与影响,主要从政治—哲学的角度把握自近代以来的法律实证主义对西方自然法传统和法律信仰的冲击,从而形成对自然权利问题的个人反思和对这一法学思潮的现代批判。     

Creating clones, kids & chimera: liberal democratic compromise at the crossroads

The objective of this article is to find middle ground between the supporters and opponents of biotechnology by perpetuating the existing legal compromise pertaining to the complete range of health and welfare doctrines relevant to the biotechnological industry. The author aspires neither to add to nor detract from this liberal democratic consensus, but to preserve its constitutive balance between positivism and natural law and over-regulation and under-regulation in the hopes of stabilizing new political fault lines developing around the few biotechnological innovations already grabbing headlines. The most feasible solution is to extend the existing liberal democratic compromise with respect to equal protection, reproductive rights, the First Amendment, human subject experimentation, patent law, and parental rights. This includes banning or monopolizing certain biotechnologies and extending substantive special respect to the ex vivo living human embryo. Biotechnology must not be left to regulate itself.     

On the Connection between Law and Morality: Some Doubts about Robert Alexy’s View

The paper aims at a critical discussion of Alexy’s conception of the relationship between law and morality, which is known to insist on their necessary connection. After a brief recapitulation of this conception, the author scrutinizes three of its essential elements: the thesis of the dual nature of law, the argument from law’s claim to moral correctness, and the idea of an objective morality. Finally, he sketches his own position which, in some respects, resembles Alexy’s view, but also differs from it in certain relevant points.     

Autonomy, justice, and disability

In this Article, Professor Carlos A. Ball explores the philosophical foundations for the types of rights and benefits that our society currently provides to individuals with disabilities. The concept of autonomy places on society a moral obligation to assist individuals with disabilities when their basic human functional capabilities are impaired. The exercise of this obligation entails assisting individuals with crossing a minimum threshold of functional capabilities below which it is not possible to lead autonomous lives. In making this argument, Professor Ball responds to libertarian critics who contend that notions of freedom or liberty proscribe an activist role for government in this arena. He explains how even a libertarian state redistributes wealth in order to provide for some incapacities. Professor Ball also disputes the idea that the meeting of the needs of the disabled is enough to provide moral justification for the rights and benefits provided to individuals with disabilities. The problem with the concept of needs, Professor Ball argues, is that it fails to account sufficiently for the human good of personal autonomy.     

The Reciprocity Theory of Rights

This article provides an explanatory account of a central class of moral rights; their normative grounding, the conditions for their possession and forfeiture, and their moral stringency. It argues that interpersonal rights against harm and rights to assistance are best understood as arising from reciprocity relations between moral agents. The account has significant advantages compared with rivals such as the interest theory of rights. By explaining the differential enforceability of rights against harm and rights to assistance, the reciprocity theory helps to refute an argument made by Cecile Fabre that the poor may have a justification for engaging in war against the affluent to compel them to fulfil their duties of assistance to the poor.     

探寻法律效力的来源——分析实证法学之理论述评

以探求法律效力来源问题在实证分析法学中的解答为目标,从哲学上的休谟难题开始阐发,试图通过对选取的几位分析法学家的理论分析,最终理解实证分析法学对于该问题的解答,并试图阐明:法律效力的来源应当是来自于法律体系的内部,即来自于法律自身。法律与道德不可分离的论断只会掩盖问题的实质,只有厘定法律的界限,才能有助于我们更加清晰地理解法律效力的来源,最终真正理解法律以及法律体系的内涵。     

对普遍伦理质疑的质疑——兼论从普遍伦理看道德信仰的根据

信仰的终极性决定了道德信仰的对象应当具有可普遍化的规范或价值.普遍伦理的诉求是重建道德信仰的前提,它既是经济和文化全球化时代发展的客观要求,又是对市场经济难以避免的道德相对主义的积极回应.求异避同的传统单向思维是质疑普遍伦理的方法论症结.     

后现代法学方法论的理论光谱

后现代法学方法论发展了哲学诠释学的相对主义观点,与科学主义法学形成了尖锐的对立,动摇了法治主义的认识论基础。在后现代法学方法论中,存在着反基础主义、解构主义、新实用主义等几种主要的法律思维形式,它们对法律知识的客观有效性持怀疑的态度,否认法律体系中存在着一以贯之的普遍性标准,也不承认法律可以从某些超越性的道德价值中推导出来,而将法律看作是政治权力角力后的结果,法律的阐释者正是政治权力的体现者。     

Positivism,Legal Validity,and the Separation of Law and Morals

The essay discusses the import of the separability thesis both for legal positivism and for contemporary legal practice. First, the place of the separability thesis in legal positivism will be explored, distinguishing between “standard positivism” and “post‐Hartian positivism.” Then I will consider various kinds of relations between law and morality that are worthy of jurisprudential interest, and explore, from a positivist point of view, what kind of relations between law and morality must be rejected, what kind of such relations should be taken into account, and what kind of such relations are indeed of no import at all. The upshot of this analysis consists in highlighting the distinction between two different dimensions of legal validity (formal validity and material validity respectively), and in pointing out that the positivist separability thesis can apply to formal validity only. On the other hand, when the ascertainment of material validity is at stake, some form of moral reasoning may well be involved (here and now, it is necessarily involved). The essay concludes with some brief remarks on the persisting importance of the positivist jurisprudential project.