著者

鳥澤 円

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.30-42,205, 2005-09-30 (Released:2008-11-17)

参考文献数

12

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Libertarians value voluntary groups, including associations and communities, on the ground that they are supposed to be formed by agreements. They think of people conforming to social norms as acting voluntarily if they are not coerced by the state. But conformity often results from cost-benefit structures which are not designed or created by anyone. If costs of violating social norms are prohibitively high, people will choose to falsify their genuine preferences. It is true that spontaneous norms are indispensable for reciprocal cooperation within groups, which is an important aspect or a necessary consequence of individual freedom. But some social norms are not optimal, and some collective actions impose serious negative externalities on outsiders. These may be called “community failures.” In this article I examine how social norms are maintained, how they resolve the collective action problems, and how undesirable-in the light of people's welfare or fairness-social norms and collective actions can be destroyed. Then I argue that what is needed is the metabolism of social norms. “The expressive function of law” may exist, but we should bear in mind that spontaneous systems of assurance are often self-enforcing and robust, and that government officials are also under the sway of social norms. Instead, we should expect “norm entrepreneurs” who discover meaningful social norms and take risks of having a commitment to them for their subjective returns.

著者

嶋津 格

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.56-63,204, 2005-09-30 (Released:2008-11-17)

参考文献数

13

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Is it that libertarianism can or must be defended for the consequences it will bring about? Since this issue was at the center of the discussion which took place among the speakers and commentators in our symposium I dwelled on this subject first. As the result ‘open consequentialism’ was supported, in which truth and falsehood of an ideology, such as libertarianism, is to depend upon unarticulated and numerous consequences that people will experience within the society committed to it. The reasons why one has come to believe or to abandon an ideology differ from one to another. Some general view point, descriptive or normative, can be said to be true if and only if there are always new examples to be discovered for its truth. In the rest of the comment some other points raised in the conference were briefly summarized; distinction between economic and personal freedom, nature of meta-utopia, policy for spontaneity, insights and limits of economics, redistribution and national defense, and the roll of brave individuals in a libertarian society.

著者

橋本 祐子

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.2004, pp.64-75,204, 2005-09-30 (Released:2008-11-17)

参考文献数

10

被引用文献数

1

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Libertarianism maintains that the power of the government should be minimized. A question arises regarding the kind of legal system that can be justified from the perspective of libertarianism. 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 stereotype, 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.

著者

竹村 和也

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.2003, pp.141-148,231, 2004-10-20 (Released:2008-11-17)

参考文献数

15

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Severe and extensive poverty persists while there is great and rising affluence today. The question to be asked is, What should we in the rich states do according to the principles of justice Arguments about justice in an international society are often divided broadly into two approaches. One is a ‘global justice’ approach which applies principles of liberal justice directly to an international society. The other is a particularist approach which restricts the domain of justice to nations or societies. If strict cosmopolitanism, which claims that duties to provide aid applied to all without distinction of nationality is right, then global justice command us to help the poor. Even if it is false, moderate cosmopolitanism is compatible with the global justice. And even if particularist approach is right, particularist approach is compatible with Pogge's theory of global justice. He suggests what he calls an institutional understanding of human right. According to this understanding, having human right means any society ought to be organized that all members have secure access to the objects of their human rights. Responsibility for a person's human rights falls on all and only those who participate with this person in the same social system. He also suggests that present global order imposes severe poverty on the poor who cannot resist this order. According to Pogge this imposition deprives them of the objects of their most basic rights and it is human rights violation. Then what we must do is to diminish the injustice of the global order through institutional reforms. We must stop thinking about world poverty in terms of helping the poor.

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

vol.2003, pp.149-156,230, 2004-10-20 (Released:2008-11-17)

参考文献数

49

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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: Pulszky, TAmiogost (1846-1901, The Theory of Law and Civil Society, London, 1888.) Pikler, Gyula (1864-1937, The Psychology of the Belief in Objective Existence, London, 1890.) Somló, Bódog (1873-1920, Juristische Grundlehre, Leipzig, 1917) Moór, Gyula (1888-1950, Macht, Recht, Moral, Szeged, 1922.) Horvath, Barna (1896-1973, Rechtssoziologie, Berlin-Grunewald, 1934.) Bibó, István (1911-1979, Democracy, Revolution, Self-Determination, New York, 1991.) 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. However, during the Cold War, especially from 1956 to 1989 in Hungary, the scholars had been officially disregarded because of their non-Marxist thought. 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

高須 則行

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.2003, pp.167-175,229, 2004-10-20 (Released:2008-11-17)

参考文献数

11

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Most of us would accept that Rudolf von Jhering converted his methodology of law from the Begriffsjurisprudenz to the Zwecksjurisprudenz around 1860. It seems reasonable to say that something changed in his mind because Jhering himself said he had made a wrong way in his method of Roman jurisprudence. However, there must be considerable doubt that his change from the Begriffsjurisprudenz to the Zwecksjurisprudenz was a complete about-face. The purpose of this paper is to point out a consistent concept of the jurisprudence that Jhering had accepted throughout his life in spite of some change in his mind. It is important to summarize the concepts of the Begriffsjurisprudenz because it has some different concepts, one of which Jhering was said to have criticized after his “conversion.” We may say that jurisprudence should deduce a conclusion from a text even if it is strange to approaches. One is a ‘global justice’ approach which applies principles of liberal justice directly to an international society. The other is a particularist approach which restricts the domain of justice to nations or societies. If strict cosmopolitanism, which claims that duties to provide aid applied to all without distinction of nationality is right, then global justice command us to help the poor. Even if it is false, moderate cosmopolitanism is compatible with the global justice. And even if particularist approach is right, particularist approch is compatible with Pogge's theory of global justice. He suggests what he calls an institutional understanding of human right. According to this understanding, having human right means any society ought to be organized that all members have secure access to the objects of their human rights. Responsibility for a person's human rights falls on all and only those who participate with person in the same social system. He also suggests that present global order imposes severe poverty on the poor who cannot resist this order. According to Pogge this imposition deprives them of the objects of their most basic rights and it is human rights violation. Then what we must do is to diminish the injustice of the global order through institutional reforms. We must stop thinking about world poverty in terms of helping the poor.

著者

多胡 智之

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.2003, pp.176-184,228, 2004-10-20 (Released:2008-11-17)

参考文献数

6

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Whenever Mill's On Liberty is interpreted, it has been interpreted as the philosophy of autonomous but selfish human being. Most interpreters have thought as if On Liberty consists only of the chapters I, II, and III. This interpretation of On Liberty caused the conception of two Mills, the author of On Liberty and the author of other writings, principally Utilitarianism. And also, it makes the peculiarity of On Liberty prominent. But Mill himself declared in chapter IV of On Liberty, that “it would be a great misunderstanding of this doctrine to suppose that it is one of selfish indifference”. So, restricting On Liberty to the selfish-individualistic philosophy is inappropriate and to see only one side of the story. The purpose of this paper is to reinterpret On Liberty by referring to the chapters IV and V which have not been taken seriously. Especially in chapter IV, Mill claims that it is important to recognize that we care each other the part of a person's life which concerns only to him, out of good office. This is the clue. In my paper, I will name this relationship as altruistic mutuality, and point out that the feature of this concept is to present alternatives for others, not to control him. Moreover, I will argue that altruistic mutuality is legitimately founded on his principle of liberty. And furthermore, I will show that On Liberty interpreted in this way opens the possibility of perfectionism whose end is not to accomplish each person's faculties but to create morally healthy society, and that On Liberty is the preparation to Mill's subsequent writings.

著者

今井 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.2003, pp.185-192,227, 2004-10-20 (Released:2008-11-17)

参考文献数

14

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“Organ donation for transplant should be done on a voluntary basis without payment in any case” - this is considered a global theory in the current transplant medicine, which is also written in recommendations and statements by WHO and World Medical Association. Most of the countries with organ transplant laws have set rules based on this principle. But slower increase of donated organs now hinders further dissemination and growth of organ transplant medicine, as everyone knows, and the principle of voluntary donation by individuals seems to have run into a blind alley in terms of its effectiveness. In recent years, primarily in the United States, there has been a debate over the introduction of financial incentive, that is, reward at the time of donation for motivating people to donate organs, and some states have already employed it as a policy. Advocates of incentive policy claim that payments to donors can increase donated organs as well as people whose lives are saved through organ transplant. This paper will compare legal and ethical arguments of paid and unpaid organ donations, examine distinctions between them, and discuss the potential of paid donation as an alternative in modern society.

著者

細見 佳子

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.2003, pp.193-202,227, 2004-10-20 (Released:2008-11-17)

参考文献数

29

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Robert Putnam, who introduced the concept of social capital into political thinking, insists that this is crucial for “Making Democracy Work”. According to Putnam, “social capital refers to connections among individuals social networks and the norms of reciprocity and trustworthiness that arise from them.” The Neo-Tocquevillean Putnam proposes that it is through contact with neighbors and active participation in community groups or voluntary associations that people learn to communicate, to become interested in the public affairs and then to participate in politics. If an adequate stock of social capital is created through interpersonal connections, he argues, it is unnecessary to rely on laws, courts and enforcement by the state the rule of law. Certainly, if all people were virtuously tolerant and never abused or harmed by others, demands for the rule of law would be less cogent. History tells us, however, that in spite of Putnam's ideal, human beings, especially majorities, are highly fallible. The rule of law is a last resort which encourages us to aim at universality, objectivity, stability and neutrality. Furthermore, we need to recall accurately the views of Alexis de Tocqueville himself, who was swayed by misgivings that democracy might decline into standardization. He expressed anxiety that people would regard every new theory as dangerous, every innovation as onerous, and consequently cease to pursue ideals. It should be permissible for a person to be alone and to remain apart from the community in order to pursue higher aims. Nevertheless, there is some truth in Putnam's thesis that social capital, incorporated in such things as trust, norms, and networks, makes democracy and our institutions work. Although “Making Social Capital Work” seems inadequate and risky on its own, we should make the best possible use of it.

著者

登尾 章

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.2003, pp.203-211,226, 2004-10-20 (Released:2008-11-17)

参考文献数

15

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Berard Mandeville has been exposed to various criticisms. But I believe the critics were sticking only to his texts so superficially that they failed to discover what Mandeville really meant with his apparent contradictions. But once we penetrate deep into his writings, we can see what he really wanted to insist was a pessimistic anthropology, which is not only compatible with but also inevitable component for a more honest understanding of the free society.

著者

堀口 悦子

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.2003, pp.32-42,235, 2004-10-20 (Released:2008-11-17)

参考文献数

9

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Sexual harassment has three types-Quid Pro Quo, hostile condition of work, and gender discrimination types. Sexual harassment is defined as unwelcome sexual behavior toward partner or people. Sexual harassment is abuse of human rights, and is sexual and gender discrimination. Harm caused by sexual harassment is various from use of words to rape. Places where sexual harassment can happen are also various. First, office. Sexual harassment is recognized as happening at office. At Japanese offices, “gray zone” is a special problem. This gray zone is connected with the employment custom in Japanese companies. This Japanese employment custom is that Japanese companies do not regard working women as equal partners. For example, male bosses and co-workers call a working woman “obasan”, which means middle-aged woman, or “ojousan”, which means miss or young lady. But working women have their own names. Working women must do odd jobs for example, “ochakumi” or making copies. Second, university or college. Sexual harassment at universities and colleges is called “campus sexual harassment” in Japan. Probably, the campus sexual harassment is connected with academic harassment in Japan. Academic harassment means harassment by professors. A professor criticizes a student for her or his academic record. Third, school elementary school, junior high school, and high school. Sexual harassment at schools is called school sexual harassment in Japan. It is no exaggeration to say that school sexual harassment is a big issue in Japan. This issue features even on such magazines as are mostly read by men. Fourth, sports. Sportswomen are threatened with sexual harassment by their coaches. Fifth, hospital or medical institutions. In Japan, “power harassment” by doctors becomes a big issue. And sexual harassment by doctors becomes an issue, too. Sixth, area-neighborhood. Sexual harassment is caused by neighbors. Seventh, the power of the State jail or prison. In Japan, female prisoners had been raped by keepers in prison for a long time ago. Another problem is the treatment of women in death cells.

著者

齋藤 有紀子

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.2003, pp.43-55,234, 2004-10-20 (Released:2008-11-17)

参考文献数

14

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In Japan, people's sexual and reproductive issues have been controlled by two laws, i. e., the Penal Code, which stipulates that abortion is illegal and the Eugenic Protection law, which is now revised as the Maternal Protection Law under the Ministry of Health, Welfare and Labour. The very existence of illegal abortion (prohibition of abortion) implies that in Japan people do not have the freedom to decide whether to have a child or not. This situation remains unchanged. Meanwhile, one of the slogans which was advocated more than 40 years ago by one of the most adical challenged people's groups in Japan was “Mothers, do not kill!” This slogan expresses challenged people's anger at the reality of the time when those parents raising challenged children kill their children by themselves or when those parents commit both infanticide and suicide so that the general public's sympathy is directed not to the children who have been killed but to the parents who have killed them. Now challenged people in Japan express repulsion at the ongoing practice of aborting challenged fetuses. They are focusing their attention on whether the concept of women's reproductive rights includes the right to abort challenged fetuses. They feel threatened by women's claim for the abortion of challenged fetus as their right. The debate on prenatal testing in Japan often focuses on the opposition between “women and challenged people” and “eugenic issues”, rather than the relationship between “women and fetuses, ” because of the aforementioned backgrounds of challenged people's movements. Now women's groups and challenged people's groups are starting to have joint discussions with the rights of both women and challenged people in scope. We need to notice these discussions, and seek ‘Justice’ to regulate technologies, which intrude into human reproductive and sexual issues.

著者

辻村 みよ子

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.2003, pp.81-96,232, 2004-10-20 (Released:2008-11-17)

参考文献数

36

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The Second Wave Feminism has criticized the modern concepts of ‘Universal Human Rights and Citizenship’ through the criticism on the public-private dichotomy. It had a tremendous impact on Feminist Jurisprudence or Women's Legal Theory established in 70's, which has developed into the Gender Law Studies since 90's. We have to reconstruct ‘Human Rights and Citizenship’ Theories in the aspect of the Gender Law Studies and improve the relation between Gender and Sovereignty or State Power. Because it is indispensable for women to participate in the political decision making toward the Gender Equal Society. Gender Law Program which provides the theoretical standpoint and perspectives for Gender Equal Society should be established for the consciousness raising, critique or textual deconstruction, theorizing law's gendered nature, and feminist practical reasoning. The role of Gender Law Studies would be enormous in order to promote the Gender Equal Society in the 21st century.

著者

内野 正幸

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.2003, pp.97-108,232, 2004-10-20 (Released:2008-11-17)

参考文献数

22

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Feminism has been considered to be imcompatible with biological sciences such as anthropology. In particular, minimalism-oriented feminists tend to dislike studies on sex difference. Actually, some biological scientists have been apt to justify the discriminative status quo. However, we should inquire the way for feminism compatible with biological sciences. In addition, we should be aware that feminism asserted to the Third World countries would be in collision with the request for respect of their cultures, and hence with cultural relativism.

著者

樺島 博志

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.2003, pp.133-140,231, 2004-10-20 (Released:2008-11-17)

参考文献数

14

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Due to the terror on the 11th September 2001, we are aware of the imminent problem of “the clash of civilizations”. It is important for legal philosophers to find out a common perception of justice, so as to overcome political, economical or religious conflicts. By the assassination, the terrorist must confront with the question about the legitimacy of his act. If he justified his murder, he could also justify the terrorism. This justification, however, would come from nihilism. If he cannot justify his murder, his assassination must be injustice. But then, why should he victimize his own life There is a leading case for this problem in the Russian revolution. On the 2 nd February 1905, one of the terrorists, Kalj aev, went to assassinate the Great Prince of Sergius with a bomb, but found a nephew and a niece of this in the wagon. At this moment, he forwent to explode the bomb, in order not to kill the children. After two days, he killed him successfully. According to Boris Savinkov's autobiography, the terrorists aimed to rescue the suffering fellows from the Czarism and to realize the peaceful world. They could not, however, achieve this ideal, because they combated with the violence. They must be agonized, because they murdered another person, even if an evil politician, and contradicted their own idea. Three authors brought up the Kalj aev's action into the literature: Savinkov himself in “The Sallow Horse” (1907), Jiro Osaragi in “The Poet” (1933) and Albert Camus in “Les Justes” (1949). And then Kazumi Takahashi compared these literatures in “Philosophy of Assassination” (1967). We can find, nowadays, a basic approach in this historical affair and these intellectual goods to orient the living of the humankind in the 21 st century to a common idea of justice beyond cultural or religious differences.

著者

伊藤 敬也

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.2002, pp.167-174, 2003-10-20 (Released:2008-11-17)

参考文献数

19

著者

大森 秀臣

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.175-182, 2003-10-20 (Released:2008-11-17)

参考文献数

9

著者

石山 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

vol.2002, pp.98-109, 2003-10-20 (Released:2008-11-17)

参考文献数

8

著者

森村 進

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.110-114, 2003-10-20 (Released:2008-11-17)

参考文献数

1

著者

市原 靖久 濱 真一郎 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.115-122, 2003-10-20 (Released:2008-11-17)