On Two Distinct and Opposing Versions of Natural Law: “Exclusive” versus “Inclusive”

Abstract. This paper takes the dichotomy between “exclusive” and “inclusive” positivism and applies it by analogy to natural‐law theories. With John Finnis, and with Beyleved and Brownsword, we have examples of “exclusive natural‐law theory,” on which approach the law is valid only if its content satisfies a normative monological moral theory. The discourse theories of Alexy and Habermas are seen instead as “inclusive natural‐law theories,” in which the positive law is a constitutive moment in that it identifies moral rules and specifies their meaning. The article argues that inclusive theories of natural law are better suited to expressing an authentic “republican” attitude. *

相似文献   

Silent Racism and Intellectual Superiority in Peru

Abstract — Historically, racism as it is understood in South Africa or in parts of the Southern United States has not existed in Peru. The absence or at least the existence to a lesser degree of this type of tension grants us a superiority over our northern neighbours. In Peru, emancipation of slaves was relatively easy. This is not to say that there do not exist prejudices against Indians, cholos , and blacks, however these prejudices have not been sanctioned by the law and they have, more than a profound racial feeling, an economic, social and cultural character. Colour does not prevent an aborigine, mestizo , or Negroid from occupying high positions if they can accumulate wealth or achieve political success. Notwithstanding these fortunate cases, there is an enormous distance between the pongos [serfs] of a highland hacienda … and those highly cultured and refined Limeños, who routinely travel to Europe. This distance is neither racial, nor based on place of origin, rather it corresponds to what can be termed an historical state of things (Jorge Basadre, 1964:4686).     

CHALLENGES OF DEVELOPMENT IN BURUNDI： A CASE STUDY OF PROTECTION OF REFUGEES AND IDPS IN POST-CONFLICT RECONCILIATION AND TRANSITIONAL JUSTICE

Violations of human rights and genocide in Burundi are among the most contentious issues which continue to attract the attention of academic discourse. This paper is concerned with the question of human rights violations in Burundi from a historical and comparative perspective. It seeks to trace the root causes of Burundi＇s sullied human rights record over 52 years since independence from Belgium in 1962, the role of the military in human rights violations, including mass killings of civilians and extra-judicial executions of political opponents and the fact that the post- conflict constitutional architecture has not succeeded in establishing accountability and responsibility for these violations; in providing truth, justice and reparations to the victims and in putting an end to the culture of impunity which seems to be entrenched in Burundian society. Moreover, by analyzing critically the results from interviewing 113 Burundians and 16 non-Burundians, this paper argues that there will be no political stability enduring peace without addressing these issues in a comprehensive manner.     

Institutionalism Old and New*

Abstract
The author deals with the legal theoretical approach that has been labelled "legal institutionalism." An old and a new version of this approach are singled out: The old one is identified with the theory defended by the Italian public lawyer Santi Romano in the first half of this century; the second one is seen in the recent work by Ota Weinberger and Neil MacCormick. After a short presentation of Romano's work, his ideas and the development proposed by MacCormick and Weinberger are compared. Similarities and differences between the two versions of institutional theory are worked out. A coda hints at an ambiguity in the definition of institution proposed by the "new" institutionalism.