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沈家本作为一个清末法律改革家,他的人格主义法律观既渊源于中国古代法律文化中的仁爱传统而超越了它,又受西方人权法思想影响,并在某些方面接近近代人权主义的水平.作者从沈家本在人身自由、社会生活自由以及同礼教派的抗争等方面论述了沈家本人格主义的人权法思想。 相似文献
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沈家本(1840—1913),字子惇,号寄簃,清浙江归安(今浙江吴兴)人。光绪九年(1883年)中进士,留在刑部补官,开始专攻法律之学。而后历任天津知府、保定知府、山西按察使、刑部左侍郎、大理寺正卿、刑部右侍郎、资政院副总裁等职。光绪二十八年(1902 相似文献
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沈家本中西法律观论略 总被引:1,自引:0,他引:1
<正> 1913年7月13日,积雨初晴,京师湖广会馆,一代法学名家沈寄簃先生的追悼大会就在此时此地召开。花圈、诔词和挽联,寄托了京师乃至全国司法界人士对这位法学前辈、近代法学的开拓者的全部哀思。北京法学会全体会员的诔词上写着:“先生精研法学,沟通中外,著述之富,髦期不倦,培植后进,成就尤多,觥觥巨行,举世所仰。”“纂修法典,熔铸东西。”“不为古囿,不畏俗嗤。”“法家泰斗,非公而谁?”挽联之一: “任支那法系于一身合周汉唐元明以迄清朝酌古准今宣徒考据词章融通国粹识世界大同之主义参英美法德日而成新律冶内安外宜乎环瀛裨海洋溢声名”沟通中外法学,融会中西法律,在中国法律发展史上承先启后,将古老的中华法系推向近代。这是几乎所有祭文、诔词和挽联的着墨之点。也可以说,这是当时京师乃至全国司法界和法学界对这位“法家泰斗”一生业绩的盖棺定论。这不是溢美之词,稍后 相似文献
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沈家本作为近代中国学贯中西、会通古今的一位封建官员,著名的法学家,在清末监狱改良中亦起了重要作用:他是清末监狱改良的提倡者.思想家,推动者,设计师。在中国监狱发展史上,沈家本起到了革故鼎新的作用,对于我国监狱从古代走向近代,功不可没,并给后人留下了许多值得思考的问题。 相似文献
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Inequality remains one of the most challenging issues on theglobal human rights agenda. It is widely recognised that a formalapproach to the assessment of inequality has failed to eliminateentrenched structural social and economic inequality and thata different approach is required in order to tackle the rootsof inequality and achieve substantive equality. In seeking toimplement an approach to equality that addresses the historyof apartheid and the social and economic inequality endemicin South African society, the South African Constitutional Courthas rejected formal equality, and is in the process of developinga substantive interpretation of equality based on the protectionof human dignity. Critics of this approach have argued thatthe concept of human dignity is too indeterminate to providea stable foundation for equality law and that it promotes anexcessively individualistic conception of equality. Focussingon key developments in defining human dignity in German andSouth African constitutional law, this article argues that theconcept of dignity is rooted in a rich tradition which is capableof underpinning an approach to equality which avoids excessiveindividualism and fully recognises the interplay between individualand community needs. A detailed exploration of the equalityjurisprudence of the South African Constitutional Court revealshow the dignity-based approach has been developed in order toprovide a framework within which the actual experience of victimsof discrimination can be explored. It is concluded that thisapproach has the potential to engage with the realities of thewide range of divisions within South African society and theireffects in order to address not only the legacy of apartheidbut also to contribute to the creation of a society in whichevery person is valued equally. 相似文献
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Evadné Grant 《Liverpool Law Review》2012,33(3):235-261
The South African Constitution numbers among a very few constitutions around the world which include justiciable socio-economic rights. One of the controversies surrounding judicial enforcement of such rights is the extent to which it is appropriate for courts to engage in policy choices in relation to the use of state resources in light of the doctrine of the separation of powers. The South African Constitutional Court has responded by developing an approach to adjudication of socio-economic rights in which the role of the court is to determine the reasonableness or otherwise of measures taken by the legislature and executive to implement such rights. However, the South African Constitution is also notable for its identification of human dignity as an underlying value and the explicit duty placed on the courts to interpret the rights protected under the Bill of Rights in conformity with this value. This article scrutinises the socio-economic rights jurisprudence of the South African Constitutional court in light of the Constitutional commitment to human dignity. It questions whether reasonableness review in socio-economic cases successfully balances human dignity with the appropriate degree of deference to the legislature and executive, in compliance with the doctrine of the separation of powers. 相似文献
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国家权力也有尊严,但不能高于人的尊严,更不能建立在侵犯人的尊严基础之上.侵犯人的尊严有私人间的个体侵犯、当权者的侵犯、“上位者”的侵犯、多数人的侵犯等等.国家权力直接侵犯或参与侵犯人格尊严往往危害更大,而最严重的侵犯人格尊严多发生在国家权力与民间联手之时.宪法保障人格尊严意味着国家权力不仅不能侵犯人的尊严,还有保障人的尊严之义务. 相似文献
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Rather than treating them as discrete and incommensurable ideas, we sketch some connections between human flourishing and human dignity, and link them to human rights. We contend that the metaphor of flourishing provides an illuminating aspirational framework for thinking about human development and obligations, and that the idea of human dignity is a critical element within that discussion. We conclude with some suggestions as to how these conceptions of human dignity and human flourishing might underpin and inform appeals to human rights. 相似文献
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Tatjana H?rnle 《Criminal Law and Philosophy》2012,6(3):307-325
The purpose of this article is to discuss the criminalization of conduct based on human dignity arguments. It proposes a modest version of integrating human dignity into discussions about criminalization. After a critical examination of both the notion of ??human dignity as an objective value?? and the assumption that the meaning of human dignity can be explained by referring to Kant??s moral philosophy, human dignity violations are characterized as severe humiliations. 相似文献
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Abstract. We argue that all human beings have a special type of dignity which is the basis for (1) the obligation all of us have not to kill them, (2) the obligation to take their well‐being into account when we act, and (3) even the obligation to treat them as we would have them treat us, and indeed, that all human beings are equal in fundamental dignity. We give reasons to oppose the position that only some human beings, because of their possession of certain characteristics in addition to their humanity (for example, an immediately exercisable capacity for self‐consciousness, or for rational deliberation), have full moral worth. What distinguishes human beings from other animals, what makes human beings persons rather than things, is their rational nature, and human beings are rational creatures by virtue of possessing natural capacities for conceptual thought, deliberation, and free choice, that is, the natural capacity to shape their own lives. 相似文献