Law and Coherence

Abstract. This paper deals with the questions of whether the law should be coherent and what this coherence would amount to. In this connection so‐called “integrated coherentism” is introduced. According to integrated coherentism, an acceptance set is coherent if and only if it contains everything that should rationally be accepted according to what else one accepts and does not contain anything that should rationally be rejected according to what else one accepts. Such an acceptance set is ideally a theory of everything, including amongst others standards for rational aceptance. On the assumption that the law, as a social phenomenon, is what the best theory about the law says it is, the law must be coherent, because the best theory of the law is part of an integratedly coherent theory of everything. This view is compatible with Raz's view that the law stems from different sources that need not be coherent in the sense that they consistently elaborate the same underlying principles or policies. Raz's view is not a consequence of integrated coherentism, however.     

Technology,change, and the management accountant

Before technology transfer can take place there must be a climate for change. An understanding of the change process is necessary if the transfer of new accounting technology is to be successful and if the design and implementation of it can be carried out in such a way as to create a fit within a particular organizational culture and environment. This article provides some insight into organizational change, change in management-accounting technologies, and the contributions of accountants to innovation in technology organizations.     

房产新政下的情势变更原则及其适用(上)

情势变更原则应当适用于异常商业风险,在房产新政已经导致合同实际履行困难或者不能履行的情况下,该房产新政具备异常因素而应当归属于情势变更事由。但即便如此,由于商事合同维系着社会经济交易稳定,而情势变更原则是保护合同的最后一道堡垒,房产新政下能否依当事人的请求而适用情势变更原则解除合同,仲裁员必须慎重对待,在双方未预见新政的情况下,应当先通过积极磋商的途径解决纠纷;在双方已预见新政且已作出相关风险防范的情况下,遵循有约定从约定原则,最大限度保护买卖双方合法权益。     

A coup d'état in law's empire: Dworkin's Hercules meets Atlas

In Law's Empire, Ronald Dworkin advances two incompatible versions of law as integrity. On the strong thesis, political integrity understood as coherence in fundamental moral principles constitutes an overriding constraint on justice, fairness and due process. On the weak thesis, political integrity, while a value, is not to be privileged over justice, fairness, and due process, but to be weighed along with them. I argue that the weak thesis is superior on both of Dworkin's criteria: fit and justifiability. However, the weak thesis must be amended to allow for coherence in policies as well as in principles: the social consequences of legal decisions must be taken into account.I would like to thank Kenneth Kiprnis for his helpful comments on earlier drafts.     

卡多佐的实用主义真理观——读《司法过程的性质》

对于卡多佐,学界基本上认同他是一个实用论者.但是,如果单从社会效用论的实用观出发,我们很难理解在卡多佐的司法观念中对法官精英化意识和遵循先例的强调,两者与社会效用至上的实用观存有一定的冲突.通过对《司法过程的性质》进行分析,并结合符合论和融贯论的基本理论,指出卡多佐的实用主义或实用论的真理观并非是绝对的社会效用至上理论,而是对符合论和融贯论之优点的综合借鉴,所以社会效用与法官精英化意识和遵循先例观念并存.     

Corporate violence against canadian women: Assessing left-realist research and policy

Canadian researchers, especially feminists, have shown, that male violence against women in both intimate relationships and public places is a significant social problem. Compared to the amount of rigorous work done on this important issue, an equally if not more serious problem for women—corporateviolence—has been given little empirical, theoretical, and political attention The primary purpose of this paper is to articulate how, some left realist survey techniques and policy proposals can contribute to the study, prevention, and control of corporate violence against Canadian women in the industrial workplace. The authors conclude this article by pointing to a few pitfalls of realism which must be add ressed before it can be effectively applied in the Canadian context.     

权利·义务:现行宪法社会权的理解与反思

公民社会权的实现必须有国家的积极作为。宪法文本对公民社会权的制度供给,如果欠缺相对应的国家义务制度反馈,则公民社会权的实现便会缺乏必要的权利救济。社会权的实现程度检验着社会制度的优越性,促使社会权的实现的途径法治化、完整化,调和权利与义务之间出现的失衡状态,从权利与义务结构——功能的角度而言,不仅对于公民有尊严的生活,而且对于国家政治、社会的稳定都有着积极的意义和作用。     

法律世界观紊乱时代的司法、民意和政治——以李昌奎案为中心

李昌奎案代表了一类"简单的""难办案件",无论法官如何决策,处理结果都不能取得良好的法律效果和社会效果。该案反映出这是一个法律世界观缺乏整体性和融贯性的时代。民意、司法与政治之间复杂的互动,以及社会对刑事司法系统的不信任,虽非中国特有的问题,但暴露出部分中国司法人员和学者对司法公信力、合法性、稳定性的理解是单维、偏颇的,缺乏健全的司法理念。经由对该案的讨论,本文强调,司法应该弥合而不是加大法律与社会的差距,如果司法要参与社会变革,它必须满足民众对公正的基本心理需求。另一方面,新媒体的兴起,使人们得以在事件流中辨识法律的社会意义,多元的法律世界观有可能获得融贯。     

Accounting for culture in a globalized bioethics.

How might a global bioethics account for profound cultural difference in a world marked by porous borders? The authors endorse a critical, self-reflexive bioethics, suggesting that bioethics needs to change its fundamental orientation if it is going to remain relevant and intellectually vibrant throughout the twenty-first century. Bioethics must attend to issue of social justice and public health, while seriously considering the implications of social context for medical morality. Negotiating moral consensus across cultural boundaries will be difficult, but is is more likely to succeed if we critically engage with the cultural assumptions underlying bioethics itself.     

民事审判方式改革与法官司法理念的重塑

在器物、制度、观念这三个层次中 ,观念层次的变革是最困难的 ,因为它牵涉到一个文化的信仰系统、价值系统等最内层的质素 ,但它也是最必需的 ,因为唯有这一层次的现代化才能真正从根本上促进一项现代化事业的最终实现。以此为考虑问题的出发点 ,作者认为我国民事审判方式改革要取得成功的一个重要前提是司法主体观念的现代化。文章以理论探讨为依托 ,同时关照我国的审判实践 ,就如何实现法官理念的更新进行了详细的探讨。     

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.     

Technology, Criminology and Crime Science

Developments in technology have changed the environment of crime, which, in some of its new forms, poses a serious threat to society. At the same time the technologies of crime control are being transformed. If criminology is to respond adequately to this changed environment, it must make radical changes in its mission, its theories and its methodologies, the collective result of which would be to make the discipline more directly relevant to crime control and prevention. This would enhance the effectiveness of these activities and would also open up new and exciting career opportunities for criminologists. If criminology does not change, it will become eclipsed by crime science and will find it increasingly hard to survive – even in the protected environment of universities.     

Social junk,social dynamite and the rabble: Persons with AIDS in jail

The issues surrounding AIDS in corrections have forced administrators to develop policy which accurately reflects the realities of the AIDS crisis. Moreover, administrators must base their policy decisions on available research findings, much of which is generated by government agencies and research policy groups. Whereas this research does serve the proper function of guiding policy, it is somewhat removed from the theoretical implications that AIDS has to societal reaction and social class. This article introduces a theoretical framework comprised of Irwin’s (1985) concept of the rabble and Spitzer’s (1975) notes on social junk and social dynamite. In addition to discussing this framework as it relates to social metaphors and social control, the implications to correctional policy are also be presented. The author gratefully acknowledges Marie Mark for her assistance in preparing the final version of this article.     

Alive and well: the good faith principle in Turkish contract law

Good faith is a principle prominent in civil law countries but less so in common law countries, and which allows courts to deviate from black letter law. It provides them with flexibility to change the outcome of a deductive legal decision if they regard it as absurd. The principle of good faith thus empowers the judiciary to deviate. It can be used for an indefinite number of cases and might lead to almost all conceivable legal consequences. For instance, the judge can invalidate the contract, change the price, suspend or change a clause in the contract, or grant injunctive relief, compensation of damages, the disgorgement of profits or a removal claim. We argue that if the principle of good faith is used to develop contract law into an instrument for redistributing wealth in favor of poor parties, this can destroy the concept of contract as a social mechanism for generating mutual gains for parties, which might lead to unwanted economic consequences in terms of efficiency losses. We argue that the principle of good faith must be carefully and reluctantly used to reconstruct the fully specified contract and that well-informed judges, who understand the factual environment of a contract well should ask how fair bur self-interested parties would have allocated the risk in a pre-contractual situation. If the courts restrict the application of the good faith principle to these functions, this provides elasticity that otherwise would not exist if courts would strictly use the rules laid down in black letter law. Moreover, it saves transactions costs and is therefore in line with economic reasoning. We look at the most important Turkish cases and find that the Turkish Supreme Court following Continental European doctrines of good faith actually uses this principle to curb opportunistic behavior of parties and not to achieve redistribution from the rich to the poor by way of interfering into contract law.     

Legal Justification by Optimal Coherence*

This paper examines the concept of coherence and its role in legal reasoning. First, it identifies some problem areas confronting coherence theories of legal reasoning about both disputed questions of fact and disputed questions of law. Second, with a view to solving these problems, it proposes a coherence model of legal reasoning. The main tenet of this coherence model is that a belief about the law and the facts under dispute is justified if it is “optimally coherent,” that is, if it is such that an epistemically responsible legal decision‐maker would have accepted it as justified by virtue of its coherence in like circumstances. Last, looking beyond the coherence theory, the paper explores the implications of the version of legal coherentism proposed for a general theory of legal reasoning and rationality.     

论农民权利倾斜性保护的价值目标

长期以来,农民群体由于自身的社会地位与社会制度等客观因素导致其在政治、经济、文化、社会等方面的正当权利得不到有效保护。以社会公平正义为价值依归的"弱有所扶"、相对贫困治理、实现全民共同富裕等时代要求,为农民权利倾斜性保护制度安排提供了正当性依据与价值基础。要实现真正意义上的农民权利倾斜性保护,必须坚持农民主体的权利地位、改变农民主体的弱势地位、维护农民主体的职业地位等基本价值定位;必须切实实现保护农民政治民主权利、土地经营权利、社会保障权利的价值承诺。惟此,才能逐步实现城乡居民权利的均等化,从而真正达到对农民权利进行倾斜性保护的目的。     

The 1970s : Reply to a Discussion

We are all aware of the vast practical and scientific significance of the problem of studying and preventing crime and of researching its causes and the conditions giving rising to it. That is why one of the principal provisions of Soviet criminal procedure is the demand that the reasons and conditions making possible the commission of the crime be determined in each criminal case, and that measures be taken to eliminate them. But if the most characteristic, the most typical features in the development of criminality are to be discovered, and if its essential causes and conditions are to be determined (and this is a most important task of criminology), we cannot rely upon the study of individual cases and persons. Because these typical, essential characteristics in the realm of criminality manifest themselves in the form of statistical regularities, criminology must therefore make use of the statistical method on the very largest scale, i.e., it must base its conclusions upon mass-scale observations. "We must remember the rule," wrote Lenin, "that in social science... we deal with mass-scale phenomena and not individual cases." (1) Therefore, criminology, like the other social sciences, is required "to make broader and fuller use of the richest statistical material. For statistics, like concrete investigations, are the air without which science suffocates and is distorted into dead scholasticism." (2)     

Immigration,Association, and the Family

In this paper I provide a philosophical analysis of family-based immigration. This type of immigration is of great importance, yet has received relatively little attention from philosophers and others doing normative work on immigration. As family-based immigration poses significant challenges for those seeking a comprehensive normative account of the limits of discretion that states should have in setting their own immigration policies, it is a topic that must be dealt with if we are to have a comprehensive account. In what follows I use the idea of freedom of association to show what is distinctive about family-based immigration and why it ought to have a privileged place in our discussion of the topic. I further show why this style of argument neither allows states to limit nearly all immigration nor requires them to have almost no limits on immigration. I conclude by showing that all states must allow some degree of family-based immigration, and that this is a duty owed not to ‘outsiders’ seeking to enter, but rather to current citizens.     

SELF‐CONTROL,SOCIAL BONDS,AND DESISTANCE: A TEST OF LIFE‐COURSE INTERDEPENDENCE

Theoretical debates and empirical tests on the explanation of stability and change in offending over time have been ongoing for over a decade pitting Gottfredson and Hirschi's (1990) criminal propensity model against Sampson and Laub's (1993) life‐course model of informal social control. In 2001, Wright and his colleagues found evidence of a moderating relationship between criminal propensity, operationalized as self‐control, and prosocial ties on crime, a relationship they term life‐course interdependence. The current study extends their research by focusing on this moderating relationship and the developmental process of desistance from crime among serious juvenile delinquents. Contrary to the life‐course interdependence hypothesis, the results indicate that whereas self‐control and social bonds are strongly related to desistance from crime, there is no evidence of a moderating relationship between these two factors on desistance among this sample. The implications of this research for life‐course theories of crime, future research, and policies regarding desistance are discussed.     

青少年犯罪原因解析及其预防

青少年犯罪是中国乃至世界所关注的一个社会问题,因为它不仅关乎一个社会的稳定与安宁,更关系到一个国家的未来。现阶段,青少年犯罪还处于上升趋势,并且还呈现出新的特点．我们必须在分析现阶段青少年犯罪原因和特点的基础上提出针对性的措施,建立有效的青少年犯罪的防控机制,来预防和控制青少年犯罪现象的发生。