法律与自由:密尔法律思想之分析

密尔是十九世纪著名的自由主义思想家,本文以其主要著作为解读材料,全面分析了密尔法律思想的哲学基础、法律理念与自由观念。密尔通过对功利主义的改造,以追求自我完善的人作为其立论的基点;在法律观上,强调了法律的惩恶功能与正当范围,并就私有财产和司法问题进行了独特的解构;在自由观方面,涉及了自由的概念、环境及范围问题,尤其是反对"社会暴虐"及"个性自由"的阐述,对后世产生了极大的影响。     

Rawlsian difference principles and economic utilitarianism

John Rawls's theory, justice as fairness, constitutes an important alternative to a utilitarian theory of social justice. This essay addresses the relationship between utilitarian choice and the difference principle that is central to Rawls's theory. It argues that the difference principle, if applied to utility, is not supportable in the economic utilitarian framework. The Rawlsian result could be consistent with this framework if expressed with respect to income rather than utility. However, the argument in a utilitarian framework is ad hoc and not compelling. The paper presents conditions under which a utilitarian in an initial position, with some similarity to Rawls's original position, would choose the Rawlsian difference principle. The choices coincide only under the unrealistic assumption that redistribution entails no efficiency loss.     

西方道德文化的现代性嬗变

西方道德文化在从前现代到现代的历史嬗变中，其理论范式和内涵都发生了深刻的变化。前现代的德性追求为现代的道德功利主义所代替，现代德性论在文化内涵上也出现了重大的变更。同时，现代道德危机与道德冲突日益凸显出道德文化现代性的尴尬境遇。     

Two Mistakes about the Concept of Punishment

This article identifies two mistakes commonly made about the concept of punishment. First, confusion exists about when an analysis of punishment counts as retributive, and when as justificatorily neutral. In particular, a fair number of legal scholars claim to analyze punishment in a neutral way, but closer inspection shows that many of these definitions are not justificatorily neutral. Second, legal scholars tend to analyze the concept of punishment very restrictively, with a focus on the intention of the legislator. While there may be good reasons to restrict the scope of the concept of punishment in the legal arena, from a philosophical point of view, restrictive analysis is not fruitful. It is a bad starting point for critical evaluation, because it is perfectly possible for impositions generally experienced as punitive not to be classified as such. This is all the more troublesome given that these impositions often contain fewer safeguards than are offered in criminal law and that there is sometimes a taboo on the language game related to punishment. I argue that these problems can be overcome by embracing an inclusive, justificatorily neutral concept of punishment that takes the outward appearance of the harm inflicted as its starting point.