著者

齋藤 朔郎

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

巻号頁・発行日

no.1955, pp.1-22, 1956

著者

杖下 隆英

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

巻号頁・発行日

no.1974, pp.1-37, 1975

著者

内藤 淳

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

巻号頁・発行日

no.2005, pp.135-143,195, 2006

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Normative judgments and their criteria are generally excluded as subjects of science on account of the dualism of facts and values. Meta-ethical naturalism, which attempts to present criteria for values in terms of facts, is therefore regarded as a fallacy. However, as normative judgments are produced through the workings of the mind of each individual, we may find some clues for examining the foundations or criteria of our normative judgments by analyzing the process of the working of our minds by scientific methods and thereby discovering its basic rules. This means that ethical problems can be approached and solved in the field of human science.<br> Indeed, we can find some useful scientific knowledge related to meta-ethical problems. For example, it has been demonstrated in some studies of cognitive psychology that judgments on moral values are decided by intuition, which is an emotional reaction, rather than by rational thinking. And according to recent research in evolutionary psychology, emotions function in order to gain benefits for each person in their reciprocal relationships with others. These scientific studies suggest that the ultimate foundation of normative judgments is in human intuition as an emotional reaction and the ultimate criterion of &ldquo;good/bad&rdquo; or &ldquo;right/wrong&rdquo; is whether it is beneficial to the individual in his/her reciprocal relationships with others. While there remains much scope for further verification, these studies suggest that it is possible to examine meta-ethical problems by scientific methods and support meta-ethical naturalism, which presents the foundations and criteria for normative values through factual statements.

著者

青野 透

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

巻号頁・発行日

no.1984, pp.154-164, 1985

著者

高橋 文彦

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

巻号頁・発行日

no.1992, pp.157-164, 1993

著者

三苫 民雄

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

巻号頁・発行日

no.1987, pp.144-152, 1988

著者

三苫 民雄

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

巻号頁・発行日

no.2003, pp.149-156,230, 2004

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The school of liberal legal philosophy has existed in Hungary since the end of the 19th century. It comprised the following thinkers, who had formed teacher-disciple relationship:<br> Pulszky, TAmiogost (1846-1901, The Theory of Law and Civil Society, London, 1888.)<br> Pikler, Gyula (1864-1937, The Psychology of the Belief in <i>Objective Existence</i>, London, 1890.) Soml&oacute;, B&oacute;dog (1873-1920, <i>Juristische Grundlehre</i>, Leipzig, 1917) Mo&oacute;r, Gyula (1888-1950, Macht, Recht, Moral, Szeged, 1922.)<br> Horvath, Barna (1896-1973, <i>Rechtssoziologie</i>, Berlin-Grunewald, 1934.)<br> Bib&oacute;, Istv&aacute;n (1911-1979, <i>Democracy, Revolution, Self-Determination</i>, New York, 1991.)<br> All these thinkers were considered to be excellent scholars not only in Hungary but across the whole world. Moreover, each of them had published some books in other countries. Without exaggeration, they can be described as legal philosophers who gained worldwide recognition dvring their lifetime.<br> However, during the Cold War, especially from 1956 to 1989 in Hungary, the scholars had been officially disregarded because of their non-Marxist thought.<br> After the Cold War, they were allowed to study freely and some of their works had begun to be published in Hungary. We have gradually been able to obtain a perspective of their lives. In this paper, I would like to describe some characteristics of their thought, with reference to the Hungarian historical and scientific conditions in that period.

著者

井上 達夫

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

巻号頁・発行日

no.1989, pp.6-23, 1990

著者

井上 達夫

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

巻号頁・発行日

no.2003, pp.68-80,233, 2004

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In this paper I argue for two claims: that liberal feminism can adequately capture the critical insights of the second-wave feminism so as to rescue the latter from its own self-defeating tendencies; and that the internal tension between the liberal and feminist perspectives of liberal feminism generates important issues that must be addressed to reinforce feminism and to deepen liberalism. In the fist section I defend the first claim by showing the following points. The second -wave feminist critique of the public/private dichotomy is based on the doctrine that the personal is political, which must be complemented by the liberal tenet that the personal is personal for <i>everyone</i>, in order to protect against &ldquo;private&rdquo; and social pressures the autonomy and equal status that women have as <i>individuals</i>. The anti-essentialist deconstruction of gender, another secondwave feminist insight, must be coupled with the liberal commitment to critical morality based on justice and human rights to get out of the trap of comprehensive deconstructionism that undermines the feminist reformative vigor. In the second section I substantiate the second claim by comparing Ayako Nozaki's conception of liberal feminism and mine. Nozaki attempts to reconstruct liberalism from a feminist perspective by incorporating Hannah Arendt's conception of equality and Amartya Sen's capability-based approach to distributive justice into her theory. I argue that her feminist concerns can be more adequately captured and defended from a liberal perspective in which the universalistic idea of justice and resource-based approach to distributive

著者

井上 達夫

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

巻号頁・発行日

no.2005, pp.58-70,198, 2006

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The present paper reconstructs the idea of rule of law as a response to the persistence of human conflicts and defends it against the criticism that it hides and speciously rationalizes the rule of men. It is pointed out that Hobbes, who correctly rejected Coke's perception of rule of law as a groundless defense of social tyranny of feudal powers including religious forces, provided a deep insight into the problem of human conflicts which even the Hobbesian social contract cannot overcome. This insight is developed by arguing that the establishment of the state as a collective decision making system and enforcement mechanism cannot prevent the persistent human con-flicts from degenerating into the violent clashes in the state of nature unless the state's power structure is subjected to the governance of the principles which enables the losers of the strife in political decision making process to accept its outcomes as something beyond the victor's justice and pay deference to the winners. The rule of law is reinterpreted and defended as constituting the governance of such principles. This implies that the rule of law constitutes the conditions of the legitimacy of law as distinguished form its rightness. A further elaboration of this point is given by showing that Jeremy Waldron's normative-positivist defense of the dignity of democratic legislation as a response to &ldquo;the circumstances of politics&rdquo; helps to clarify the distinction between the legitimacy and rightness of law although it fails to solve the question of what constitutes the conditions of legitimacy. It is concluded that an adequate answer to this question is provided by the &ldquo;strong structural interpretation&rdquo; of rule of law. The rule of law on this interpretation protects the proto-right to justice-review of the outcomes of constitutional as well as legislative strife and subjects them to the test of the universalizable and reversible justification which underlies competing conceptions of justice as their common conceptual core.

著者

井上 達夫

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

巻号頁・発行日

no.1983, pp.73-103, 1984

著者

高井 裕之

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

巻号頁・発行日

no.2000, pp.62-66, 2001

著者

横濱 竜也

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.208-218,259, 2007-10-30 (Released:2010-12-16)

参考文献数

16

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Why should subjects defer to and obey their ruler? This question which is taken seriously especially by civil disobedients, coustitutes the core of the problem of legitimacy, and inquiries of the answer to the question has been mainly done in the theories of political obligation. But standard theories of political obligation have not given enough attention to the moral character of vertical relationship between ruler and subjects and the basis of intrinsic value of the latter's deference to the former. Arguments from fairness regard the state as a social cooperation between the equal members, and as an instrument to supply goods indispensable for us, so they do not adequately recognize the intrinsic value of deference. One of the arguments from natural duty of justice appeals the needs of political institutions which administer stably in a specific territory the principles of justice, but they attach little importance to how the relation between ruler and subjects has formed, and how subjects consider that their ruler believes in good faith that his judgment is just. The reasons for ruler to care about the basis of his political authority and the reasons for subjects to take seriously the basis of their political obligation are essentially different, and we should treat them separately. But in spite of the difference, to the virtue of ruler who presents consistently his understanding of the common goods, subjects have a (strong) reason to defer because in his claim of consistency, ruler has to be open and accountable to dissentients who blame him for inconsistency.

著者

赤岩 順二

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.219-228,258, 2007-10-30 (Released:2010-12-16)

参考文献数

47

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This essay offers an interpretation of Plato's Nomoi 842b-860e, from agricultural laws to the answer of Athenian Stranger who was himself raising the question whether legisla-tive activities are recommended or not. There are three parts in the essay. The first part (section I) shows that the agricultural legislation is well designed and could be seen as a prototype for the rest of legislation. The second part (section II) shows that the legislative story, from the beginning of Book IX to an objection by Cleinias (857 b), is regarded as an error, which shows a possi-ble misbehavior of criminal justice in a post agricultural society. The third and final part (section III) discusses about the question whether judicial and legislative activities themselves are included in the subject of a Socratic paradox, “No one willingly do wrong”, introduced by Athenian Stranger (860 d). This essay answers “yes”, according to interpretations in the first and second part of the study. If that is the case, Plato assigns the Socratic paradox to a roll preventing the deviance of criminal justice.

著者

中村 隆文

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.229-242,258, 2007-10-30 (Released:2010-12-16)

参考文献数

34

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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. 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. 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

大塚 滋

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.142-149, 2007-10-30 (Released:2010-12-16)

著者

三本 卓也

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.150-157,262, 2007-10-30 (Released:2010-12-16)

参考文献数

29

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In this article, I discuss two kinds of legal conceptions that Hohfeld described in his 1913 article: duty and privilege (or [unilateral] liberty). I focus on one specific interpretation that most readers seem to share; that is, the interpretation of Hohfeld as adopting a thesis ‘duty implies liberty’ (hereinafter T1). In order to assess the validity of T1, I think it necessary to stress the analogy between duty-liberty relations in Hohfeld's analysis on the one hand, and obligation-permission relations in deontic logic on the other. From this standpoint, T1 above equals a well-known thesis in deontic logic, which maintains that 'Op D Pp should be included as an axiom of a deontic system' (hereinafter T2). Moreover, T2 is closely related to yet another one, that is, `there exist logical relations between norms' (hereinafter T3). I argue that it is possible to interpret Hohfeld as denying T1 (contrary to currently dominant approach), and that this inter-pretation has its merits when it claims itself to be a system of deontic logic. After briefly summarizing what jural ‘opposites’ (in Hohfeld's term) mean, I argue that his own text becomes perfectly consistent when read as rejecting Tl. One might wonder if, logically speaking, Hohfeld's system thus interpreted is rich enough (as pointed out by Lindahl and others). I argue that it is, particularly when connected to the deontic system of von Wright's. Here, we must be aware that von Wright made, as time went by, at least three different kinds of arguments about T2 and T3. Of these three, particularly of note is, in my opinion, the system proposed in the third period. At that time, he contended that, while one should reject T3 (and hence T2), this never means the demise of deontic logic. To support this contention, he introduces ‘rationality’ standard, and thereby tries to reconstruct deontic logic from a new perspective. Based on this, I suggest that Hohfeld be understood as ‘von Wright in the third and (in my opinion) maturest period’, although this interpretation has several unsolved problems to be dealt with.

著者

早川 のぞみ

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.158-167,261, 2007-10-30 (Released:2010-12-16)

参考文献数

29

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Ronald Dworkin's theory about the ‘moral reading’ of the Constituion has made an influence not only on legal theories but also on constitutional theories through our country. The feature of his theory is on the point that he understands the Constitution, particularly the Bill of Rights, as a comprehensive system of abstract moral principles. My aim in this paper is to clarify the characteristics of his theory by comparing a very different type of theory, the ‘Originalism’. I also look at the abortion case. Examining how the two theories argue over this case, I try to discuss not only the signigficance about Dworkin' s theory, but also its problem as well.

著者

伊佐 智子

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.168-178,261, 2007-10-30 (Released:2010-12-16)

参考文献数

16

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In this paper, the reproductive rights are explained, at first, from its historical background, particularly in terms of the international declarations. Secondly, it shows this right should be a right to “reproduction”, because only women can choose whether to give a birth to a baby or not. A woman and fetus in her body are united on one side, but on the other independent. In this meaning a woman can choose to or not to give a birth to a baby with a responsibility towards the fetus. We should realize the importance, concerning society with decreasing birthrate. These rights must be a fundamental right for women as a moral and legal person. Finally, a nation has a moral and legal responsibility to fulfill and realize reproductive rights of women, then it leads to protect fetal life as well.

著者

吉岡 剛彦

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.179-189,260, 2007-10-30 (Released:2010-12-16)

参考文献数

39

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This paper is about Arthur Kaufmann's legal philosophy. Especially it focuses upon his theories of “the right to cheap resistance, ” “the principle of tolerance, ” and “relational person, ” which Kaufmann took into much account in his later years. These theories are related to his basic thinking on ontology of law (right), legal hermeneutics, legal methodology. I will try to describe Kaufmann's design for “an ideal society” by my own evolutional interpretation of his legal philosophy. In this description I pay attention to his insistence that statutory law (positive law) should be moderate or last resort (ultima ratio). The ideal society in Kaufmann's legal thought is, I think, a society through which voices of people (minorities) raising objections to the status quo can be circulated surely, and in which other people pay respect to the voices and can be stimulated to break away from their present viewpoints by “another vision” of the society in the voices.