Raz on Constitutional Interpretation

Law and Philosophy -     

Raz on Necessity

Law and Philosophy -     

Raz on Responsibility

Standard treatments of responsibility have been preoccupied with issues of blame and punishment, and concerns about free will. In contrast, Raz is concerned with problems about responsibility that arise from the “puzzle of moral luck,” puzzles that lead to misguided skepticism about negligence. We are responsible not only for conduct that is successfully guided by what we take to be our reasons for action, but also for misexercises of our rational capacities that escape our rational control. To deny this is to lose sight of the ways “moral luck” is an inescapable feature of our agential engagement in the world. The present essay attempts to set out Raz’s argument as sympathetically as possible. Raz’s shift of focus is a powerful counter to current tendencies and points us in new and promising directions. Nonetheless, as it stands, it may just relocate skepticism about negligence to a different place.     

Raz on Rights: Human Rights,Fundamental Rights,and Balancing

After clarifying the outlines of Raz's interest theory of rights and its relationship to aspects of the principles theory of rights, I consider how his recent observations on human rights manage to fit (or fail to fit) into the interest theory. I then address two questions. First, I elaborate on Raz's definition of morally fundamental rights, arguing that he is right in claiming that there are no such rights. I then show that the interest theory accommodates the notion that rights may take qualitative precedence over conflicting considerations—a question that has become increasingly relevant in light of recent writing on rights.     

Hart,Raz and the Concept of a Legal System

An underpinning assumption of modern legal positivism isthat the question of how legal standards differ fromnormative standards in other spheres of human thoughtis resolved via the concept of a legal system and thenotion of internal logic, through use of contextualdefinition. This approach is seen to lead to anuntenable form of structuralism altogether atodds with the positivist's intentions. An alternativestrategy is offered which allows the positivists toretain their deepest insights, though at a price.     

Schauer on Coercion,Acceptance, and Schizophrenia

This article provides a comment on The Force of Law (Schauer 2015), which is Schauer's new and illuminating contribution to the place of law in our societies and in our lives. It constitutes a strong defence of the importance of coercion in law. First, I consider cases where the law is not able to motivate human behaviour adequately, in order to show that legal coercion is not always justified. Second, I examine the Rawlsian distinction between the ideal and the nonideal theory and its application to the theory of law. Third, I tentatively argue that coercion has no place in ideal theory, but a core place in nonideal theory. In this way, it may be plausible to reconstruct the motivation to accept the law, at least when the law is normatively justified.     

The Problem of Law's Authority: John Finnis and Joseph Raz on Legal Obligation

Law and Philosophy -     

Legal Positivism and Deontic Detachment

I consider a puzzle that arises when the logical principle known as “deontic detachment” is applied to the law. It is not possible to accept the principle of deontic detachment in a legal setting while also accepting that the so‐called “social facts thesis” applies to all legal propositions. According to the social facts thesis, the existence and content of law is determined by the attitudes or practices of legal officials. Abandoning deontic detachment is not an appropriate solution to the problem—the puzzle can be recreated with other plausible closure principles. The problem can be solved by restricting the social facts thesis to legal rules, rather than applying it to all legal propositions. Properly construed the social facts thesis does not apply to facts about what legally ought to be the case.     

法律权威与行动理由——基于拉兹实践哲学进路的考察

权威可以分为理论权威与实践权威、事实权威与合法权威,拉兹讨论的是合法的实践权威。权力与承认这两个概念都无法有效地界定合法的实践权威,在一定意义上可以说,拉兹的实践权威理论批判性地借鉴了权力论的分析模式并用行动理由作为基本分析概念。法律主张合法权威是法律的一个本质特征,法律规范也是一种强制性的行动理由,即一种内容独立的排他性理由。     

Detachment and Deontic Language in Law

Some legal philosophers regard the use of deontic language to describe the law as philosophically significant. Joseph Raz argues that it gives rise to ‘the problem of normativity of law’. He develops an account of what he calls ‘detached’ legal statements to resolve the problem. Unfortunately, Raz’s account is difficult to reconcile with the orthodox semantics of deontic language. The article offers a revised account of the distinction between committed and detached legal statements. It argues that deontic statements carry a Gricean generalized conversational implicature to the effect that the rules in question reflect the speaker’s own commitments. Detached legal statements are made when this implicature is either explicitly cancelled or when the conversational context is sufficient to defeat the implicature. I conclude by offering some tentative reflections on the theoretical significance of deontic language in the law.     

Joseph Raz and the Instrumental Justification of a Duty to Obey the Law

Law and Philosophy -     

立案监督问题与对策探讨

立案监督是实现司法公正和保障人权的需要 ,但在司法实践中 ,由于执法者的监督意识及制度方面还存在不足 ,影响了立案监督的作用 ,为此有必要采取相应对策予以弥补。     

Hart and Raz on the Non-Instrumental Moral Value of the Rule of Law: A Reconsideration

HLA Hart and Joseph Raz are usually interpreted as being fundamentally opposed to Lon Fuller’s argument in The Morality of Law that the principles of the rule of law are of moral value. Hart and Raz are thought to make the ‘instrumental objection’, which says that these principles are of no moral value because they are actually principles derived from reflection on how to best allow the law to guide behaviour. Recently, many theorists have come to Fuller’s defence against Hart and Raz, refuting the ‘instrumental objection’ and affirming the non-instrumental moral value of conformity to the principles of legality. This article argues that although this moral value should be affirmed, the orthodox view is incorrect, because Hart and Raz never understood their arguments about the instrumental or ‘purposive’ value of the principles of legality as denials of their moral value, as a close reading of their work shows.     

债权人受领迟延几个问题的研究

我国法律对受领迟延缺乏明确的规定,理论上也缺少深入的论述。本文试就受领迟延的性质、构成要件及其法律后果进行初步探讨。