著者
角田 猛之
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.2002, pp.59-70, 2003-10-20 (Released:2008-11-17)
参考文献数
9
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

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.
著者
土井 真一
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.2005, pp.30-41,199, 2006

In this article, the difference between the <i>Recthsstaat</i> principle and rule of law is clarified through analyses of the administrative and judicial law-making processes. Based on such analyses, pros and cons of the <i>Rechtsstaat</i> and rule of law are compared, and the conclusion is drawn that a way to unite the two law-making processes to work together in a balanced manner should be sought, and that reinforcement of the judicial law-making process is indispensable for rooting the rule of law in the Japanese society.
著者
服部 高宏
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.2001, pp.63-75, 2002-10-30 (Released:2008-11-17)
参考文献数
9
著者
北原 宗律
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.1988, pp.145-152, 1989-10-30 (Released:2008-11-17)
参考文献数
17
著者
道垣内 弘人
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.2006, pp.128-133,263, 2007-10-30 (Released:2010-12-16)

What are the characteristics of legal thinking is a fundamental but difficult problem to answer in legal sciences, including philosophy of law, even if we focus on the way of the interpretation of statutory laws. However, at least, we might say that to keep the consistency of law is one of the most important requirements in the interpretation. What to evade is not only the apparent contradiction in the interpretation but the hidden conflict of different principles, for example, liberalism, libertarianism, paternalism and so on, when we cannot justify the coexistence of principles by the difference of situations. In this context, philosophy of law works as a supplier of tools for analyzing the hidden principles behind legislation, cases and statutory interpretation by academics. The education of philosophy of law as a tools-supplier might have three stages. 1) To teach the principles themselves (e. g. justice theories). 2) To teach the way of analysis. 3) To discuss the relative merits of principles. However, too much emphasis of the importance of philosophy of law sometimes drive the students to settle the cases on the principle which they believe in, without paying attention to the possibility of making other contradiction in the whole system of law. Legal thinking is a restrictive one in the sense that they should respect the firmly established rules.