著者

中村 隆文

出版者

THE JAPAN ASSOCIATION OF LEGAL PHILOSOPHY

雑誌

法哲学年報 (ISSN:03872890)

巻号頁・発行日

vol.2006, pp.229-242,258, 2007

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Locke's theory as a contractarian has a great influence on the debates about social justice between "liberalism" and "libertarianism" yet. Even have many differences of opinions in those, they almost depend on the "natural law" and "natural right" elaborated by Locke when he tried to defend the "liberty" against an authority of the king. This reason is that they believe Locke's natural jurisprudence and ideas of "liberty" and "right" are set in the Declaration of Independence. It's nothing to be surprised at this, so now I intend not to doubt this fact, and that, not to convict their debates as pointless.<br> I suggest that "liberty", "right" and "justice" can be also defended philosophically by a school of thought in the eighteenth century other than Locke's, no matter how we estimate his influence on the then America. Directly and frankly professing, I regard the Scottish Enlightenment as functioning that role in the century, and its significance has still lived under the debate about the idea of social justice.<br> I place a special emphasis on the point that Scottish thinkers, especially David Hume and Adam Smith, had defended the America outside the theory of contractarianism involved with liberalism and Libertarianism. It shows that "justice" intrinsically exists in a relationship, in other words "convention" and it can not be discovered in the contractual lawmaking way but in the judiciary way reflecting sense of justice, or moral sense, because law of justice will be expanding over the domain of human rationality of economical worldview.