Freedom, Law, and the Colonial Project

In this essay I develop a Marxist-informed anticolonialist position, and from this position I assess the role of law in the early Canadian settler-state. I claim that the flexibility of law is a measure of its restitutive and exploitative facets, such facets that operate dialectically as a means of moderating between the settler-state’s liberal democratic ideals (e.g. individual freedom and enfranchisement) and its capitalist imperatives (e.g. privatization of land, expansion, and profit). Law plays an integral role in this context because, by performing this moderating function, it stabilizes the socio-economic order of the emergent settler-state. In the second half of this essay, I enrich my theoretical analysis by examining the variable legal subjectivity of early Ukrainian immigrants to Canada. This historical perspective allows me to illuminate the intricacies of the logic that informs law’s flexibility, and to show how the liberal democratic principle of freedom was—and continues to be—both extolled and compromised by the law’s moderating function.     

表达自由与合理使用制度

一表达自由(freedom of expression),也称信息自由、言论自由(freedom of speech),意指所见所闻所思以某种方式或形式表现于外的自由。它至少包括了解信息的自由、持有意见的自由、传播意见的自由、接受意见的自由、意见表达方式的自由,是一个以知情权为中心的法律构造。信息自由保障了一个人传递并且获得信息的权利。其正当性大致基于下面三个互相依     

Mired in Confusion: Nominative Fair Use in Trademark Law and Freedom of Expression

Trademark law, like other areas of intellectual property law, frequently conflicts with First Amendment interests in various ways. One particularly critical intersection between trademark and free expression is the nominative fair use doctrine, which was created to ameliorate this conflict to some degree. This article explores the history of nominative fair use and argues that the test is inadequate to the task of protecting First Amendment values within trademark law. The article then analyzes an arguably better approach, the Rogers test, and argues that courts should look to Rogers as a superior means of preserving expressive values in trademark doctrine.     

Law, Morality, Coherence and Truth

Abstract . The author analyzes the relations between truth and law starting from the distinction between practical and theoretical spheres. He shows, first, how moral and legal statements and reasoning are connected with an operation of weighing and balancing different values and principles and how this operation is ultimately based on personal and intuitive preferences and feeling. The criteria developed by the theoretical sciences to define truth (coherence, consensus and pragmatic success) can only be translated into practical statements as criteria of correctness because we cannot affirm that a norm or value statement is true or false. The three criteria become interrelated indices of correctness: They are criteria for rational discourse.     

Morality and Law

Abstract. The controversy over law and morality between positivists and normativists is largely a result of failure on both sides to understand the idea of authority. The author argues that Plato, Aristotle, Aquinas and Hobbes held a common notion of legal authority that was distinctively moral. They all saw the virtue of law (and the source of legal obligation) in the equal protection it provides for all against the disorder to which passion makes men vulnerable, and not in the justice of its provisions. Michael Oakeshott, among contemporary theorists, best illustrates this approach to a resolution of the differences between positivists and normativists.     

有关法律与自由的问题

就人类活动而言,法律主要表现为规范、引导和限制人的行为;自由则是满足人行为的自主与自为。两者之间似乎是一对矛盾,我们怎样认识和理解这对矛盾呢? 讨论这个问题之前,先让我们来认识自由行为的主体——人和自由行为的环境——社会之间的关系。马克思把人的本质看成是“真正的社会联系”,是“社会关系的总和”,是“人的真正共同体”。同时,全体的人又总是从属于一定的社会群体、阶层和阶级,生活在特定的历史时段。因此,那种用超社会、超阶级、超时代的观点来界定人的自由概念是不可取的。     

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.     

Michael Moore on Torture,Morality, and Law

During the past few decades, Michael Moore has written incisively on an array of matters concerning the relationships between law and morality. While reflecting on those relationships, he has plumbed the nature of morality itself in impressive depth. Among the topics which he has addressed, the problem of torture has been prominent and controversial. It is a problem, moreover, that has led to some of his most searching enquiries into the character of moral obligations. In the present essay I take issue not only with many of Moore's conclusions about torture, but also with some of his more far‐reaching claims about the domain of morality.     

道德性:法律的人性之维——兼论法与道德的关系

法是人类社会特有的一种社会现象,所以对法的研究最终不可能不追寻到人的本性.但能作为法律基础的人的本性只是道德性,道德的最高境界是正义,它是一种理想的人际关系和社会制度,在其中人人受到尊重和关爱,人人各尽其能,各得其所.人的行为它必须借助于法律这样的公共权力使一个社会人们的行为保持道德性的一种制度安排.因此,道德性是法律的人性基础,是制定和实施法律的出发点和归宿点.     

论经济法的道德性

从本源上看,经济法的道德性来自对企业的社会责任伦理、公平交易伦理、经济行政责任伦理、可持续发展伦理以及公平分配伦理等社会经济伦理的法律提升。而一旦现实的经济伦理道德进入经济法领域,就使得经济法表现出独特的、鲜明的道德性特征。具体而言,经济法的道德性表现在经济法律规范的价值内涵、经济法对社会中各种利益的价值判断标准、经济法的非强制性和经济法对社会生活发挥能动作用的形式等方面。     

法律之所遗道德之所补--论依法治国与以德治国相结合

法治与德治是相辅相成的.以德治国同依法治国一样都符合宪法规定.依法治国与以德治国相结合的关键是国家工作人员,特别是领导干部.     

Law and Morality at War

Through a critical engagement with Jeremy Waldron’s work, as well as the work of other writers, I offer an account of the relative scope of the morality of war, the laws of war, and war crimes. I propose an instrumentalist account of the laws of war, according to which the laws of war should help soldiers conform to the morality of war. The instrumentalist account supports Waldron’s conclusion that the laws of war justifiably prohibit attacks on civilians even if it turns out that some civilians lack a moral right not to be killed. Importantly, the instrumentalist account also offers what Waldron thinks impossible: a non-consequentialist defense of the failure of the laws of war to prohibit the killing of nonthreatening combatants. Finally, I argue that new war crimes can be broader than the morality of war as well as established laws of war and that many of the arguments for defining war crimes more narrowly than either the morality of war or the laws of war are unconvincing. In all of these ways, I hope to carry forward Waldron’s project of exploring the relationship between law and morality in war.     

On the Relationship Between Law and Morality

Abstract. Instead of being embarrassed and uneasy about the implications of the separation thesis, positivists should welcome the fact that they cannot account for the obligatoriness of law. The rule of recognition is only a social rule and introduces no grounds for obligation.     

论法和道德的现实与未来的冲突及构造

道德是法的价值核心．法是基本道德的国家强制。以建立社会主义法治国家为目标的中国应完成的任务不能仅仅只是法律体系的完备与转型,即停留在道德的法律化阶段,更重要的在于实现法律的道德化,即法与道德的和谐。     

Deception in Morality and Law

Law and Philosophy -