- 著者
-
浅野 有紀
- 出版者
- 日本法哲学会
- 雑誌
- 法哲学年報 (ISSN:03872890)
- 巻号頁・発行日
- vol.2004, pp.105-111,202, 2005-09-30 (Released:2008-11-17)
- 参考文献数
- 4
This comment addresses two critical points about libertarian legal philosophy. The first relates to the possible contradiction between the idea of property and freedom of contract, two ideas on which libertarianism is usually thought to be based. To clarify this contradiction, I refer to the argument made by Murray Rothbard. He argues that a person has a contractual duty only when his default amounts to ‘theft.’ Identification of contractual duty and theft in this way is, Rothbard insists, necessary to explain libertarianism coherently. However, considering the breaking of contractual duty as theft has to mean that rights and duties resulting from contracts should be correlative in some objective or economic sense. The correlation cannot derive from freedom of contract, but instead must stem from the protection of property and the relationship between rights and duties according to corrective justice. Accordingly, it is my opinion that libertarianism must allow for some intervention by a third party, possibly the state, in order to ensure this objective correlation. My second point addresses the close relationship between the idea of the freeianism. In this paper, I attempt to define a comprehensive vision of a libertarian legal system and show the significance of libertarian legal theory. I start by illustrating three fundamental backgrounds of libertarian legal theory. The first is an awareness that useful knowledge disperses widely across a society, as emphasized by F.A. Hayek. The second is a libertarian view of human nature. Libertarianism does not presuppose a stereo-type, but rather accepts multiple types of human nature. According to the third background, which pertains to methodology, there exist two types of approaches a natural rights-based approach and a consequentialistic one. I then explain the features of libertarian legal theory. I consider private law-based legal principles, restitution as alternative to punishment, and emphasis on the rule of law to be the three main characteristics of this theory. Finally, I consider the implications of libertarian legal theory for today. The features of this theory appear to be similar to those of classical modern law. However, I believe that it should not be understood merely as a regression to classical modern law. Libertarian legal theory can offer a solution to the issue of legalization (Verrechtlichung), which is one of the serious problems faced by welfare states. In other words, it can be considered a legal theory for a “post-legalized society.” Furthermore, since the patterns of social ordering and conflict resolution become diverse, there exists a requirement for various methods of legal ordering other than those initiated by the government. I believe that libertarian legal theory has the potential to be used as a legal theory for non-government-initiated legal ordering.