Secret Law and the Value of Publicity*

Abstract. Revelations in the United States of secret legal opinions by the Department of Justice, dramatically altering the conventional interpretations of laws governing torture, interrogation, and surveillance, have made the issue of “secret law” newly prominent. The dangers of secret law from the perspective of democratic accountability are clear, and need no elaboration. But distaste for secret law goes beyond questions of democracy. Since Plato, and continuing through such non‐democratic thinkers as Bodin and Hobbes, secret law has been seen as a mark of tyranny, inconsistent with the notion of law itself. This raises both theoretical and practical questions. The theoretical questions involve the consistency of secret law with positivist legal theory. In principle, while a legal system as a whole could not be secret, publicity need not be part of the validity criteria for particular laws. The practical questions arise from the fact that secret laws, and secret governmental operations, are a common and often well‐accepted aspect of governmental power. This paper argues that the flaw of secret law goes beyond accountability and beyond efficiency to the role that law plays, and can only play, in situating subjects’ understanding of themselves in relation to the state. Secret law, as such, is inconsistent with this fundamental claim of the law to orient us in moral and political space, and undermines the claim to legitimacy of the state's rulers.     

Law and Morality: A Critical Relation*

Abstract. The article deals with the difference between some forms of legal positivism. It is argued that, even in continental legal systems which are typically “rule bound,” there is some space left for principles in the legal system. The author tries to explain how this space can be filled and what methods should be used by a judge to do so.     

Alexy on Necessity in Law and Morals*

Robert Alexy has built his original theory of law upon pervasive claims for “necessary” features of law. In this article, I show that Alexy's claims suffer from two difficulties. First, Alexy is never clear about what he means by “necessity.” Second, Alexy writes as if there have been no challenges to claims of conceptual necessity. There have been such challenges and Alexy needs to answer them if his project is to succeed.     

On Necessary Relations Between Law and Morality*

Abstract. The author's thesis is that there is a conceptually necessary connection between law and morality which means legal positivism must fail as a comprehensive theory. The substantiation of this thesis takes place within a conceptual framework which shows that there are at least 64 theses to be distinguished, concerning the relationship of law and morality. The basis for the author's argument in favour of a necessary connection, is formed by the thesis that individual legal norms and decisions as well as whole legal systems necessarily make a claim to correctness. The explication of this claim within the frame of discourse theory shows that the law has a conceptually necessary, ideal dimension, which connects law with a procedural, universalistic morality.     

The Plurality of Sources of Law*

Abstract. In this paper, the Author contends with the problem of an infra-state differentiation of sources of law. He examines two accounts of a juridical pluralism, that of Walzer (1983) and that of Boltanski and ThCvenot (1991). Both these works reveal a similar inability to account for the political dimension. The Author identifies this inability as the result of the paradox of the political. He goes on to discuss this paradox in terms of a need to reconcile indivisible popular sovereignty with the proliferation of a multitude of sources of legality.     

The Politics of the Rule of Law*

Abstract. The rule of law should be understood as part of the culture of democracy which requires a distribution of power between a periodically elected legislature and executive and an independent, but publicly accountable, judiciary in charge of a more slowly changing legal doctrine. The rule of law is also essential for the protection of individuals in fast changing pluralistic societies. In both its aspects the doctrine is a product of a particular historical culture, and requires a culture of legality, and not merely the introduction of a few legal rules, for its proper functioning.     

Philosophy of Law and the Theory of Speech Acts*

Abstract. The object of this paper is to throw light on the reciprocal exchanges between legal philosophy and the theory of speech acts (as developed by Austin and Searle). The first part concerns the contributions to legal philosophy made by the theory of speech acts with a view to developing new perspectives. The second part deals with the contributions of legal philosophy to speech act theory.     

试论儿童的现象学

并非只有成人才有可能掌握与运用现象学的方法。由于儿童较少“前设性”和“成见性”;由于儿童在游戏中与事物融为一体,达到了接近事物并直接面对事物本身的状态;由于儿童常常“固执已见”也摆脱权威中介,直接面对事物本身;由于儿童的思维主要是具体形象思维,故儿童有其自己的现象学。其特点为自发性、易受主观性及自我中心思想的影响。研究儿童现象学对儿童研究和成人现象研究具有重要意义。     

Law,Morality, and the Existence of Human Rights*

In the debate between positivism and non‐positivism the argument from relativism plays a pivotal role. The argument from relativism, as put forward, for instance, by Hans Kelsen, says, first, that a necessary connection between law and morality presupposes the existence of absolute, objective, or necessary moral elements, and, second, that no such absolute, objective, or necessary moral elements exist. My reply to this is that absolute, objective, or necessary moral elements do exist, for human rights exist, and human rights exist because they are justifiable.