共查询到20条相似文献,搜索用时 15 毫秒
1.
Paula Gaido 《Law and Philosophy》2011,30(6):685-698
This article seeks to clarify Joseph Raz’s contention that the task of the legal theorist is to explain the nature of law,
rather than the concept of law. For Raz, to explain the nature of law is to explain the necessary properties that constitute
it, those which if absent law would cease to be what it is. The first issue arises regarding his ambiguous usage of the expression
“necessary property”. Concurrently Raz affirms that the legal theorist has the following tasks: (a) explain the essential
properties of that which the concept of law refers to, which exists independently from any concept of law; (b) explain the
essential properties of law given our concept of law. After trying to dissolve the ambiguity of Raz’s argument, I conclude
that based on his methodological commitments the only possible task for a legal philosopher would be conceptual analysis,
understood as the task of explaining our concept of law. 相似文献
2.
Law's Legitimacy and 'Democracy-Plus' 总被引:2,自引:0,他引:2
Is it the case that the law, in order to be fully legitimate,must not only be adopted in a procedurally correct way but mustalso comply with certain substantive values? In the first partof the article I prepare the ground for the discussion of legitimacyof democratic laws by considering the relationship between lawslegitimacy, its justification and the obligation to obey thelaw. If legitimacy of law is seen as based on the law beingjustified (as in Razs service conception),our duty to obey it does not follow automatically: it must bebased on some additional arguments. Razs conception oflegitimate authority does not presuppose, as many critics claim,any unduly deferential attitude towards authorities. Disconnectionof the laws legitimacy from the absolute duty to obeyit leads to the second part of the article which consists ina critical scrutiny of the claim that the democratically adoptedlaw is legitimate only insofar as it expresses the right moralvalues. This claim is shown to be, under one interpretation(motivational), nearly meaningless or, under anotherinterpretation (constitutional), too strong tosurvive the pressure from moral pluralism. While we cannot hopefor a design of pure procedural democracy (byanalogy to Rawlsian pure procedural justice),democratic procedures express the values which animate the adoptionof a democratic system in the first place. 相似文献
3.
Simon Wigley 《Law and Philosophy》2009,28(6):617-649
Scholars are divided over whether a victim’s rights persist when an agent permissibly responds to an emergency. According
to the prevailing view the moral force of rights is not extinguished by moral permissibility and the agent, therefore, has
a duty to compensate the victim. According to another influential view permissibility does erase the moral force of rights
and the agent, therefore, can only have a duty to compensate for reasons other than the fact that they committed a rights
transgression. I argue that liability does not follow even if we grant that the victim’s rights persevere. A non-pecuniary
remedy such as a formal apology provides an adequate way of vindicating the victim’s rights and of recognizing the agent’s
causal role. Thus, the answer to the question of what remedy the permissible transgressor owes the victim does not provide
us with an answer to the question of who should bear the burden. 相似文献
4.
The great challenge of rhetorical argument is to make discourse ethical without making it less logical. This challenge is
of central importance throughout the full range of practical argument, and understanding the relation of the ethical to the
logical is one of the principal contributions the humanities, in this case the study of rhetoric, can make to legal scholarship.
Aristotle’s Rhetoric shows how arguments can be ethical and can create ethical relations between speaker and hearer.
I intend to apply Aristotle’s analysis to a phenomenon that did not yet exist for him, that of authority, by asking how the
acts of asserting and accepting authority can be ethical acts. I take as a test case a peculiarly unfortunate and inept appeal
to authority, that offered by the counsel for the District of Columbia in arguing Bolling v Sharp who cited Taney’s opinion
in Dred Scott to clinch his point. By seeing just what goes wrong in such a maladroit appeal, I explore the rational, voluntary
and ethical dimensions of a decision to accept a given commitment to authority.
I use Joseph Raz’s analysis of authority and the relation of reason to authority, yet think I go beyond Raz by exploring the
deliberate and voluntary nature of submission to authority. Choosing to be bound by an authority is an ethical act. As such
it is always rational and yet never purely rational. The Supreme Court’s choice of authorities is part of its making itself
into an authority, and is a paradigm of the ethical act of choosing to be obligated. Choosing to be committed or obligated
is a central paradox of political theory and considerations of authority and obligation, at least since early social contract
theorists. However, its importance for judicial reasoning, which at the same time chooses to submit to authority and itself
becomes an authority, has not been noted. Consideration of the relations between the ethical and the logical can help us better
to articulate the constitution of ethical authority.
This revised version was published online in July 2006 with corrections to the Cover Date. 相似文献
5.
Kimberley Brownlee 《Law and Philosophy》2008,27(6):583-597
An enduring question in political and legal philosophy concerns whether we have a general moral obligation to follow the law.
In this paper, I argue that Philip Soper’s intuitively appealing effort to give new life to the idea of legal obligation by
characterising it as a duty of deference is ultimately unpersuasive. Soper claims that people who understand what a legal
system is and admit that it is valuable must recognise that they would be morally inconsistent to deny that they owe deference
to state norms. However, if the duty of deference stemmed from people’s decision to regard the law as valuable as Soper argues,
then people who do not admit the value of the state would have no duty as such to defer to its norms. And, more importantly,
people who admit the value of the state would have a duty not to defer to particular norms, namely those norms which violate the values that ground their preference for a state. This
critique of Soper operates within his parameters by accepting his claim that moral consistency generates reasons to act. Even
on those terms, Soper’s defence of legal obligation as a duty of deference is unpersuasive.
I wish to thank John Tasioulas, Joseph Raz, Bill Edmundson, Adam Cureton, the editors and referees of Law and Philosophy, and the participants of the Society for Applied Philosophy 25th anniversary conference, July 2005, St Anne’s College, Oxford. 相似文献
6.
7.
Robert Eaglestone 《Law and Critique》2009,20(3):271-280
The article argues that the contentious and complex concept of ‘authenticity’, which Agamben develops from Heidegger, forms
a central continuity between Agamben’s earlier work, which focuses more on language and art, and his later work, which focuses
more on politics. Moreover, I suggest that although this concept is often unquestioned and elided in his work, it plays a
crucial role in the deep structures of his thought. Moreover, the ‘unthought concept’ of ‘authenticity’ is of concern because,
while authenticity might possibly have a role to play in the sphere of how we come to understand and relate to artworks, there
are reasons to be suspicious of this concept in the political realm if, indeed, these two ‘realms’ can be understood separately.
If these two spheres cannot be clearly separated, as seems more likely, then it is even more important to explore and question
the terms and cluster of concepts around ‘authenticity’. 相似文献
8.
In this paper I discuss the proposal that the law of torts exists to do justice, more specifically corrective justice, between
the parties to a tort case. My aims include clarifying the proposal and defending it against some objections (as well as saving
it from some defences that it could do without). Gradually the paper turns to a discussion of the rationale for doing corrective
justice. I defend what I call the ‘continuity thesis’ according to which at least part of the rationale for doing corrective
justice is to mitigate one’s wrongs, including one’s torts. I try to show how much of the law of torts this thesis helps to
explain, but also what it leaves unexplained. In the process I show (what I will discuss in a later companion paper) that
‘corrective justice’ cannot be a complete answer to the question of what tort law is for. 相似文献
9.
Jun Feng 《Frontiers of Law in China》2006,1(2):210-220
Right of life and life are different concept. The former is endowed w by state beforehand, which is proved through his behavior
that he is deserved to own the right of life. The one who thoroughly offend the basic norm in the law is the enemy of our
realistic world. If only the enemy still have danger to threaten the society, he should be executed to death penalty, and
deprived of his life, but will not happen the problem of miscarriage of justice and inhumanity. The criminal’s behavior just
only denies part of norm in the law, however, who still is mankind and should possess of mankind’s dignity, so we must abolish
death penalty on them, miscarriage of justice is another reason of course.
__________
Translated from Peking University Law Journal, 2005(5) (in Chinese) by Mi Zhibin 相似文献
10.
Massimo Renzo 《Criminal Law and Philosophy》2010,4(3):267-282
According to the received view crimes like torture, rape, enslavement or enforced prostitution are domestic crimes if they
are committed as isolated or sporadic events, but become crimes against humanity when they are committed as part of a ‘widespread
or systematic attack’ against a civilian population. Only in the latter case can these crimes be prosecuted by the international
community. One of the most influential accounts of this idea is Larry May’s International Harm Principle, which states that
crimes against humanity are those that somehow ‘harm humanity.’ I argue that this principle is unable to provide an adequate
account of crimes against humanity. Moreover, I argue that the principle fails to account for the idea that crimes against
humanity are necessarily group based. I conclude by suggesting that the problem with May’s account is that it relies on a
harm-based conception of crime which is very popular, but ultimately mistaken. I submit that in order to develop an adequate
theory of crimes against humanity we need to abandon the harm-based model and replace it with an alternative conception of
crime and criminal law, one based on the notion of accountability. 相似文献
11.
Alastair Morgan 《Law and Critique》2009,20(3):299-307
In this paper, I consider Giorgio Agamben’s essays on gesture, and the loss of gesture, in relation to Theodor Adorno’s account
of gesture given in his work on Kafka. I argue that both share an account of gesture as an involuntary, yet non-intentional
figure of a generalised destruction of experience. However, in their respective accounts of an emphatic possibility that can
be located in the loss of gesture, Agamben and Adorno move in fundamentally different philosophical directions. For Agamben,
the loss of gesture opens up the possibility of a space of existing within the pure possibility of speaking itself. For Adorno,
the loss of gesture returns us to a reified embodiment that can nevertheless image the possibility of a different way of relating
to materiality. I argue that, in the attempt to immanently construct forms of resistance within a generalised destruction
of experience, Agamben’s articulation of an absolute gesturality tends towards an immuring of the subject within the repetitive
space of what Adorno terms ‘objectless inwardness’. Although Adorno’s account of gesture and its relation to metaphysics and
politics is equally problematic in many ways, I argue that his account of a metaphysical experience that appears within alienated
gestures offers the possibility for moving beyond the destruction of experience. 相似文献
12.
This paper examines the Buddhist’s answer to one of the most famous (and more intuitive) objections against the semantic theory
of “exclusion” (apoha), namely, the charge of circularity. If the understanding of X is not reached positively, but X is understood via the exclusion
of non-X, the Buddhist nominalist is facing a problem of circularity, for the understanding of X would depend on that of non-X,
which, in turn, depends on that of X. I distinguish in this paper two strategies aiming at “breaking the circle”: (i) conceding
the precedence of a positive understanding of X, from which a negative understanding (i.e., the understanding of “non-X”)
is derived by contrast, and (ii) denying any precedence by proposing a simultaneous understanding of both X and non-X. I consider
how these two options are articulated respectively by Dharmakīrti in his Pramāṇavārttika cum Svavṛtti and by one of his Tibetan interpreters, Sa skya Paṇḍita, and examine the requirements for their workability. I suggest that
Sa skya Paṇḍita’s motivation to opt for an alternative solution has to do with his criticism of notions shared by his Tibetan
predecessors, an outline of which is given in Appendix 1. In Appendix 2, I present the surprising use of the charge of circularity
by an early Tibetan logician against his coreligionists. 相似文献
13.
David Martinez-Zorrilla 《Law and Philosophy》2011,30(6):729-749
In recent years, the most widespread doctrine about the conflicts between fundamental (usually constitutional) legal rights
could be summarized in the following three main theses: (1) The elements in conflict are legal principles, as opposed to legal
rules; (2) Those conflicts are not consequences of the existence of inconsistencies or antinomies between the norms involved,
but rather depend on the empirical circumstances of the case. In other words, the norms are logically consistent and the conflicts
are not determinable a priori or in abstracto, but only in concreto; and (3) The classical criteria for solving conflicts between norms, such as lex superior, lex posterior and lex specialis, are not suitable to solve conflicts among fundamental legal rights. Indeed, they require a specific method known as ‘weighing
and balancing’. Although all three theses could be (and indeed have been) regarded as problematic, in this paper I address
mainly the second one. I try to show that there is room for a tertium genus between antinomies (deontic inconsistencies) and conflicts caused by strict empirical circumstances that I call ‘contextual
antinomies’. There are situations in which the norms involved are not inconsistent but the conflict arises for logical reasons.
My thesis is that many conflicts between fundamental legal rights fall in this category. I offer, in an appendix, a proposal
of formalization of this kind of conflict and the elements involved in it. 相似文献
15.
Sonu Bedi 《Criminal Law and Philosophy》2011,5(3):349-360
In a sex selective abortion, a woman aborts a fetus simply on account of the fetus’ sex. Her motivation or underlying reason
for doing so may very well be sexist. She could be disposed to thinking that a female child is inferior to a male one. In
a hate crime, an individual commits a crime on account of a victim’s sex, race, sexual orientation or the like. The individual
may be sexist or racist in picking his victim. He or she could be disposed to thinking that one race or sex is inferior to
another. I argue that while a prohibition on sex selective abortions is anomalous in a liberal, criminal legal framework,
hate crime legislation may not be. The former but not the latter constitutes a thought crime. I define a thought crime as
one where an agent’s motivation is not just relevant but sufficient to take an act from the domain of the non-punishable to
the domain of the punishable. Ignoring a woman’s sexist motivation in procuring an abortion suddenly renders her act of abortion
legal. On the other hand, discounting an agent’s bias in committing a hate motivated assault or murder does not transform
the act from a punishable one to a non-punishable one. Assaulting or murdering is already a crime. 相似文献
16.
Zhongxiang Zhang 《International Environmental Agreements: Politics, Law and Economics》2011,11(3):245-259
Balancing China’s energy needs to fuel its rapid economic growth with the resulting potential impacts of climate change presents
an enormous climate policy dilemma, not simply for China but for the entire world. This is the major reason why the role of
China is an issue of perennial concerns at international climate change negotiations. In response to these concerns and to
put China in a positive position, this paper maps out a realistic roadmap for China’s specific climate commitments toward
2050. Taking many factors into consideration, the paper argues that China needs to take on absolute emissions caps around
2030. However, it is hard to imagine how China could apply the brakes so sharply as to switch from rapid emissions growth
to immediate emissions cuts, without passing through several intermediate phases. To that end, the paper envisions that China
needs the following three transitional periods of increasing climate obligations before taking on absolute emissions caps
that will lead to the global convergence of per capita emissions by 2050: First, further credible energy conservation commitments
starting in 2013 and aimed at cutting China’s carbon intensity by 46–50% by 2020; second, voluntary “no lose” emission targets
starting in 2018; and third, binding carbon intensity targets as its international commitment starting in 2023. Overall, this
proposal is a balanced reflection of respecting China’s rights to grow and recognizing China’s growing responsibility for
increasing greenhouse gas emissions as China is on its way to becoming the world’s largest economy. 相似文献
17.
Deborah Hellman 《Criminal Law and Philosophy》2009,3(3):301-316
Willful blindness is not an appropriate substitute for knowledge in crimes that require a mens rea of knowledge because an
actor who contrives his own ignorance is only sometimes as culpable as a knowing actor. This paper begins with the assumption
that the classic willfully blind actor—the drug courier—is culpable. If so, any plausible account of willful blindness must
provide criteria that find this actor culpable. This paper then offers two limiting cases: a criminal defense lawyer defending
a client he suspects of perjury and a pain doctor who suspects his patient may be lying about her pain. The paper argues that
each of these actors is justified in cultivating ignorance about his client’s or patient’s truthfulness. If this is right,
then a good theory of willful blindness must distinguish these cases. The article argues that neither Husak & Callender’s
motivation-based account of willful blindness nor the recklessness account is able to do so. The paper proposes the following
alternative: contrived ignorance constitutes culpable blindness when the decision to remain blind or to cultivate blindness
is not itself justified. This Justification approach meshes with our intuitions about willfully blind drug couriers as well
as willfully blind lawyers and doctors. 相似文献
18.
19.
Arne de Boever 《Law and Critique》2009,20(3):259-270
This essay reconsiders Marx’ prehistory of capital through the lens of the work of Giorgio Agamben, who in the wake of Foucault
has proposed a bio-political theory of sovereignty that breaks down the analytical separation between sovereignty and governmentality
that Foucault in his work tries to maintain. Although Agamben mentions Marx only once in his study of sovereign power, I argue
that his study nevertheless contributes to our understanding of the capitalist relation as not only a governmental but also
a sovereign power relation. In the first part of this essay, I show through a philological commentary on Marx’ use of the
adjective ‘vogelfrei’—translated as free, rightless, without protection, outlawed—to characterise the proletariat, that the Marxian proletariat
is a figure of what Agamben in his study of sovereign power calls bare life. In the second part of the essay, I show that
this sovereign dimension of the capitalist relation is also substantiated by Marx’ analysis of the logic of the capitalist
relation as that of the exception. After Carl Schmitt, who wrote that ‘sovereign is who decides on the state of exception’,
Agamben has argued that the logic of the exception is the logic of sovereign power. Reconsidered through the lens of Agamben’s
argument, Marx’ account of the prehistory of capital reveals that there is a sovereign logic of the exception at work in the
capitalist relation. In the final part of the essay, I start from Agamben’s single reference to Marx in his study of sovereign
power to discuss the importance of my conclusions for Agamben’s political message. 相似文献
20.
Inga M. Jacobs 《International Environmental Agreements: Politics, Law and Economics》2012,12(2):187-210
An ensemble of normative codes of conduct in the form of global, regional and domestic norms, principles of best practice
and laws have developed over time providing standards of appropriate behaviour in the governance of transboundary rivers in
an attempt to eradicate or minimise real or perceived conflicts. Through a multi-levelled analysis of water governance in
the Orange-Senqu River basin in Southern Africa, this paper investigates the relationships between co-operative management
norms constructed at different levels of scale, and the ways in which both norm and context are transformed as a result of
the other. At the basin level, legal and institutional processes symbolise a movement towards norm convergence in the basin.
However, norm drivers (such as technical co-operation, personalised politics, trust and confidence building) and norm barriers
(such as skills flight and the lack of trust) to the development of a ‘community of interest’ in the Orange-Senqu River basin
have also been significant in shaping the legal and normative landscape. An analysis of global, regional, basin-wide and local
norms is therefore useful because it illustrates the interconnectedness of their interactions as well as how their content
is affected. 相似文献