The Inevitability of Moral Evaluation*

According to contemporary legal positivism, law claims to create obligations. In order for law to be able to create obligations, it must be capable of having authority. Legal positivism claims that for law to be capable of having authority, it only has to meet non‐moral or non‐normative conditions of authority. In this paper it is argued that law can only be capable of having authority if it also meets certain normative conditions. But if something must meet certain normative conditions in order to be capable of having authority and if it must be capable of having authority in order to be law, then it is only law if it is conceivable that it meets these normative conditions and this can only be ascertained by means of an evaluation. Therefore, legal positivism's claim that determining what the law is does not necessarily, or conceptually, depend on moral or other evaluative considerations (the separation thesis) is incompatible with its claim that law must be able to create obligations. Further, an analysis of Hart's concept of law shows that it is not only possible that the identification of the law depends on moral evaluation, as Hart claims, but that it is conceptually necessary that it does.     

The Relevance of Coercion: Some Preliminaries*

Many philosophers take the view that, while coercion is a prominent and enduring feature of legal practice, its existence does not reflect a deep, constitutive property of law and therefore coercion plays at best a very limited role in the explanation of law's nature. This view has become more or less the orthodoxy in modern jurisprudence. I argue that an interesting and plausible possible role for coercion in the explanation of law is untouched by the arguments in support of the orthodox view. Since my main purpose is to clear the ground for the alternative, I spell out the orthodox view in some detail. I then briefly sketch the alternative. Finally, I turn to Jules Coleman's discussion of the alternative.     

Moral Individualism and the Justification of Liberal Democracy

This article discusses the connection between individualism, pluralism and the moral foundation of liberal democracy. It analyses whether the requirement of value pluralism promoted by liberal democracies leads inevitably to communitarian ethics, or whether the liberal and democratic values of autonomy, tolerance and equality are actually based on an objectivistic and teleological account of justice. The author argues that value-neutral procedural and methodological individualism cannot support the liberal demands for pluralism and tolerance in a democratic regime. Instead, the justification of liberal democracy has to replace mechanical, methodological individualism with moral individualism. Moral individualism shows that in order to be legitimate and functioning liberal democracy has to be based on the form of individualism which contains objectivist moral aspects.     

Regulation of Technology Transfer to Developing Countries: The Relevance of Institutional Capacity*

This article revisits the debate over appropriate approaches to the regulation of technology transfer to developing countries. It begins by contrasting two stylized approaches, labeled for convenience the “New International Economic Order” model and the “Globalization” model, which have historically struggled for acceptance. It then explores the implications for the choice between these or alternative models of the fact that many developing countries presently lack the institutional capacity required to provide optimal regulation of technology transfer. Existing discussions appear either to assume that developing countries possess sufficient institutional capacity to design and implement sophisticated regulatory regimes, or to take the opposite approach and assume a drastic shortage of institutional capacity. Both approaches ignore the intermediate category of countries that do face constraints upon institutional capacity but are striving to overcome them. The analysis here is intended to demonstrate the general point that a country's present and future institutional capacity ought to be considered highly relevant to the design of central aspects of the regime that it uses to regulate technology transfer. The analysis is also designed to highlight the specific need for attention to the distinctive questions of regulatory design which arise in countries that are in the process of enhancing their institutional capacity in this and other regulatory contexts.     

Positivism and Communitarianism: Between Human Rights and Democracy*

Abstract The author deals with theoretical connections between legal positivism and communitarianism. Such connections prove to be relevant not only for a better understanding of these two trends of thought but also in order to throw light on important philosophical issues like human rights and democracy. Deep links are traced and recognized between the so-called positivism “in action,” and especially its ideological thesis, and communitarianism.     

Some Problems with Robert Alexy's Account of Legal Validity: The Relevance of the Participant's Perspective*

This article examines Robert Alexy's account of legal validity. It concludes that Alexy's account of legal validity lacks sufficient support given the author's methodological commitments. To reach that conclusion, it assesses the plausibility of simultaneously maintaining that the participant's perspective has conceptual privilege in the explanation of the nature of law, that legal discourse is a special case of general practical discourse, and that unjust considerations can be legally valid norms.     

犯罪观的认识论考察

从历史的角度考察 ,犯罪的认定从古至今经历了“重实质”到“重形式” ,再到“形式与实质统一”这样一个发展过程。从认识论的角度考察众多的犯罪本质观 ,规范违反说是最符合社会科学的价值特质的一种观点。在内容上 ,“罪的观念”是在社会一般规范与现实中发生的行为互动的过程中产生的 ,而社会一般规范是在各种观点的竞争和妥协过程中整合而来。规范违犯与法益侵害在层次上、作用场域上不同 ,但又相互影响和支撑。     

Basic Rights and Democracy in Jurgen Habermas's Procedural Paradigm of the Law*

Abstract . A central element of Habermas's discourse theory of law is his procedural paradigm. This includes a procedural understanding of basic rights, which is supposed to resolve both the classical tension between basic rights and democracy and the problem of collision between basic rights. I try to show that the procedural paradigm can do the first only at the cost of inadmissible idealization. Under realistic conditions one can only attempt to institutionalize the tension between basic rights and democracy as rationally as possible. Also, the problem of collision of basic rights cannot really be solved by the procedural paradigm. What can be substantiated is merely a prima facie priority of participation in the process of public opinion- and will-formation over merely private activities. Whether this prima facie priority becomes a definite priority in a concrete case or group of cases depends on the weight of counterarguments, as to which the procedural paradigm is silent.     

Moral Rights,Judicial Review,and Democracy: A Response to Horacio Spector

Law and Philosophy -     

A Moral Appeal for Taxpayer Compliance: The Case for a Mass Media Campaign*

This paper examines the ability of the mass media to enhance compliance with the law by the use of moral appeals. Drawing on the moral development literature and the literature of mass communication effects, we set forth a model for designing mass media campaigns directed at improving compliance with the law. Tax compliance is the issue we analyze. While we determine that no appeal, however well-crafted, is expected to reform all tax offenders, and that some approaches are likely to produce less rather than more compliance, we identify hallmarks of a potentially successful appeal.     

网络民主与网络暴力

网络的出现给更多的人更多的表达机会,网民直接参与所带来的大量信息的交流与反馈似乎使直接民主成为可能。但网络是一把双刃剑,促进民主的同时也催生了网络暴力等。网络中的是与非并不是技术本身的必然。在目前的条件中网络民主形式必须结合网民实际的道德修养而论。直接民主难以在目前的网络秩序中实现,网络民主并不能等同于直接民主。     

Legal Rights and Moral Rights: Old Questions and New Problems*

Abstract. The author examines the discipline of moral rights and in particular the need to embed them in a consequential system. He argues that the widely held opinion that independence from consequential evaluation is the right way of guaranteeing individual freedom is based on an inadequate appraisal of the role of moral rights in the social context. In this perspective he examines two specific cases: (1) elementary political and civil rights, and (2) the reproductive rights of women in the context of poor countries with the problem of fast population growth. He argues that a coherent goal-rights system which accommodates rights among others goals, can overcome the non-consequential arguments and justify the force of moral rights fully within a consequentiality perspective.     

行政立法中部门利益法制化的防范

行政立法中部门利益法制化是我国社会发展中面临的新问题,市场经济的逐利性是主要外因,行政权的双重性和公务员身份的双重性是其主要内因.解决这一问题的主要途径应从社会主义法治发展的趋势中寻找,坚持依法行政,坚持民主、科学的立法原则,从实质和程序两方面规范行政立法行为,推进对行政行为司法审查方面的改革.     

民主的网络维度及其限度

对于人类民主生活而言,无论是直接的古典民主还是间接的代议制民主都存在着自身难以克服的问题。在国家治理复杂性日益提升的背景下,协商民主理论构成了代议制民主的补充性方案,它以公共领域作为空间依托,有助于实现精英治国和民众参与的有效结合。随着互联网信息技术的快速发展,以网络社群为载体的网络公共领域逐渐兴起,它实质性地拓展了民众对公共事务的协商和参与,发挥着重要的民主功能,为协商民主理论注入了新的活力。然而,网络民主也存在着数字鸿沟、群体集化、非理性表达、政府回应缺失等问题。网络民主功能的发挥有赖于长效的保障机制,它涵摄完善的网络立法、政府回应机制、基层网络设施以及网民的理性自律意识。     

宪法裁判与民主的悖论

当今许多国家为了维护民主纷纷建立了宪法裁判制度,然而也有些国家却为了民主不被侵害而拒绝宪法裁判。宪法裁判与民主的紧张自始至今从未消除,其实它们之间无矛盾性又无必然性,宪法裁判有助于民主,同时它也存在一定的民主风险。为发挥宪法裁判对民主的优长,应该运用法院的司法功能去避免其对民主的危害,这需要在宪法裁判与民主之间进行调适,恰当界定宪法裁判机关与立法机关之间的适当领域。对存在民主缺憾的国家来说,宪法裁判不失为至关重要的选择。     

The Relevance of Intention to Criminal Wrongdoing

In this paper, we defend the general thesis that intentions are relevant not only to moral permissibility and impermissibility, but also to criminal wrongdoing, as well as a specific version of the Doctrine of Double Effect that we believe can help solve some challenging puzzles in the criminal law. We begin by answering some recent arguments that marginalize or eliminate the role of intentions as components of criminal wrongdoing [e.g., Alexander and Ferzan (Crime and culpability: a theory of criminal law. Cambridge University Press, New York, 2009), Chiao (Crim Law Philos 4:37–55, 2010), Walen (Crim Law Philos 3:71–78, 2009)]. We then turn to some influential theories that articulate a direct role for intentions [e.g., Duff (Answering for crime: responsibility and liability in the criminal law. Hart Publishing, Portland, 2007), Husak (Crim Law Philos 3:51–70, 2009)]. While we endorse the commitment to such a role for intentions, we believe that extant theories have not yet been able to adequately address certain objections or solve certain puzzles, such as that some attempt convictions require criminal intent when the crime attempted, if successful, requires only foresight, and that some intended harms appear to be no more serious than non-intended ones of the same magnitude, for example. Drawing on a variety of resources, including the specific version of the Doctrine of Double Effect we have developed in recent published work, we present solutions to these puzzles, which in turn provide mutual support for our general approach to the role of intentions and for thinking that using others as means is itself a special kind of wrongdoing.