著者

服部 寛

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.2007, pp.220-229, 2008 (Released:2021-03-31)

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In the realm of the juristic methodology, the jurisprudence of interest (Interessenjurisprudenz) is newly revalued and from this point of view, there is general tendency to reexamine the development towards the jurisprudence of evaluation (Wertungsjurisprudenz). In this article I focus on three persons, whose methodologies are important with regard to the topic “from the jurisprudence of interest to the jurisprudence of evaluation”. First I consider the opinion of Harry Westermann, who is regarded as a pioneer of the jurisprudence of evaluation. I give an overview on the main theses of his methodology and opinion about the activity of judge. Then by the means of analyzing his opinion about the chattel mortgage (Sicherungsubereignung) and reservation of title (Eigentumsvorbehalt), I want to check through his concrete Discussion. Secondly I look at the methodology of Rudolf Miiller-Erzbach, one of the very few surviving theoreticians of the jurisprudence of interest after the World War II. After World War II he considered the causal thinking of law (Kausales Rechtsdenken) by criticizing the former jurisprudence of interest. With his understanding that the development of law is bound to the power, he tried to grasp rationally the momentum of the evaluation. Thirdly, I give an overview the methodology of Heinrich Hubmann. At first I deal with his thought about “natural law and sense of justice (Rechtsgeflihl) ”, which is developed under a strong influence of the renaissance of natural law. Next I take a look at his “theory of weighing of interests (Theorie der InteressenabwSgung) ” and his criticism of the jurisprudence of interest. Taking opinions of these three persons into consideration, I want to draw conclusions for the development “from the jurisprudence of interest to the jurisprudence of evaluation”.

著者

井上 彰

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

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vol.2007, pp.230-240, 2008 (Released:2021-03-31)

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‘Libertarianism as a theory of justice’ aims to demonstrate the justness of property rights in terms of personal rights (protecting negative freedom). Since Robert Nozick’s theory of historical entitlements appeared, many authors have attempted to provide a philosophical justification for libertarianism as a theory of justice. Among them is Hillel Steiner who pursues the possibility of libertarianism as a theory of justice by presenting a coherent theory of rights. In this paper, I argue that Steiner’s theory of rights leads us to see left-libertarianism as the definitive version of a libertarian theory of justice. As I see it, Steiner’s theory successfully shows that: first, the system of libertarian justice consists of a system of perfect duties, not of imperfect duties; second, exploring the general content of (property) rights is analytically significant for a libertarian theory of justice; third, libertarianism as a theory of justice should employ an egalitarian rule of allocating resources. Although Steiner’s theory of rights has at least two problems, I argue, his argument advances a distinct theory of libertarian justice at the level of ideal theory.

著者

藤岡 大助

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

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vol.2007, pp.161-170, 2008 (Released:2021-03-31)

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G.A. Cohen argues against the Rawls’ background premise that distributive justice is applied only to the social basic structure, not to the choices people make within it. Because it is not only structure but also people’s daily actions within it that effects on the prospect of Rawls’ Difference Principle, his exclusion of daily actions from range of justice fails to take justice seriously. Many Liberal conceptions of justice, including Dworkin’s Equal Concern as Sovereign Virtue, share the same background premise of Rawls. According to Cohen, unless these Liberal conceptions of justice abandon this background premise, they face with bankruptcy for inconsistency. However, if we follow Cohen’s suggestions, we shall allow government far-reaching intervention against people’s own choices of their life styles. In order to avoid both of illiberal consequences of Cohen’s inclusion and inconsistency of Liberal exclusion, we should understand Liberal exclusion not as background premise but as positive commitment, namely the part of the conception of justice. If we realize them so. Liberal exclusion works as a side constraint against fulfillment of the distributive scheme. In this recasting, Liberals have to bear a load of debt to justify why Liberal exclusion is accepted at the price of prospect of distributive scheme, but it becomes possible to avoid bankruptcy for inconsistency.

著者

郭 舜

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

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vol.2007, pp.171-180, 2008 (Released:2021-03-31)

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Today we are facing a new type of interventionism grounded on what may be called a “new just war theory”. The new just war theory is characteristic in claiming both substantive justice and its representativeness in waging a war. These two factors are conspicuous in NATO’s intervention in the Kosovo crisis and the US war on terror. A number of writers points to the punitive nature of the new just war theory. Following this line of thought, the current author explores the idea of the right to punish which correlates with the duty to punish, and draws constraints on its exercise. The major requirements derived from the concept of justice following Inoue Tatsuo’s argument are the prohibition of double standard and of free riding. These conditions should be construed as disjunctive rather than conjunctive, taking into account the decentralised structure of the international society. If either of these conditions is met, there is a room for the punitive new just war theory to be justified as an internally consistent claim. However, the punitive nature of the new just war theory incurs a prohibitive cost not only for the intervening state but also for neighbouring states of the state being “punished”. For any activity of punishment in the international sphere almost inevitably impedes the government function, and necessitates recovery of governance and reestablishment of government. Thus, sharing cost internationally is an unavoidable consequence of unilateral intervention, while consistent application of a standard of intervention is almost impracticable for an individual state. In contrast, the UN collective security system is best interpreted as founded on the idea of administration in a broad sense. While the organisation’s role commenced as a police action, its activities now extend to peace building and prevention of conflict, based on a broad and substantial understanding of peace. Contemporary international settings has made it inevitable that any intervention depends upon the well-functioning of such activities and therefore when made unilaterally any intervention involves free-riding on the administrative scheme.

著者

伊藤 克彦

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

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vol.2007, pp.181-190, 2008 (Released:2021-03-31)

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It seems that current jurisprudential discussions neglect legal meta-axiology (meta-ethics). For example, when we claim to be “discussing the value reasonably” in normative theory of Justice, we don’t know “what is “reasonable””. Normative theory in current discussions faces the problems of justification of theory. I propose that we should focus on legal meta-axiology (meta-ethics) to solve this problem, and this paper explains John McDowell’s meta-ethical theory and its philosophical background. McDowell criticized J. L. Mackie’s and Simon Blaclburn’s projectism through arguments on secondary quality and thick ethical concepts. Particularly, McDowell doubted the Cartesian view which is the background of their meta-ethical theory. McDowell’s meta-ethics position is based on his philosophical claim “Spaces of reasons” and criticism of “Myth of the given”. In his view, we do not receive experience that is given; we receive experience thorough concepts and beliefs. These concepts construct complex structure of justification, which McDowell called “Spaces of reasons” In my view, McDowell’s discussions is similar to significance of jurisprudential problems such as : (1) the problem of legal value, (2) critical reconsideration of the dichotonomy of fact/value, (3) analysis of “reason”, and (4) practical reason and reasoning.

著者

菅原 寧格

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

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vol.2007, pp.191-200, 2008 (Released:2021-03-31)

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The objectives of this study are to reconstruct the debate on value relativism by focusing on the thought succeeded by Karl Jaspers from Max Weber and to consider the possibility of approaching contemporary theories of justice from the history of thought, based on the implications of the above. Therefore, first the study will demonstrate and argue that Weber’s “value discussion” is different from the conventional understanding of the thought on “value relativism”, and is rather a discussion that directly undertakes the issue of the “rightness” of conduct, by developing and evaluating this issue through the two criteria of “technical criticism” and “value logical criticism”. Second, the study will illustrate that Jaspers, who is known as an existentialist, has succeeded and philosophically elaborated and extended the thought of Weber as a “communication” theory. This study will identify that Weber and Jaspers’s thoughts are closely related to issues in contemporary philosophy of law through the analysis of both thoughts, and moreover, demon strate the potentialities and possibilities of value relativism and the study of history of thought.

著者

吉永 圭

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

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vol.2007, pp.201-209, 2008 (Released:2021-03-31)

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This paper insists that Wilhelm von Humboldt’s educational theory as a statesman had a folk or nation-oriented character under the universe-oriented form. In “Koenigsberg and Lithuania schoolplan” (1809), Humboldt suggested language study, especially ancient Greek and Latin, in secondary education. His official reason was that it was useful for universal self-cultivation. The keyword to understand the core of his statement is “Weltansicht” (a folk’s own world) in his linguistics. According to Humboldt, each folk has each “Weltansicht”. Thought and language of each folk is under the influence of it. And “Weltansicht” gets much affluence when it faces another. The change for the better of it will continue endlessly. So this process may be called “the dialectical process”. A folk develops from its own state into higher stage in the process. In the political context of Germany, this process meant that German would approach the universal state through ancient Greek and Latin and be the good nation.

著者

早瀬 勝明

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

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vol.2007, pp.210-219, 2008 (Released:2021-03-31)

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In this essay, I examine discussions of John Hart Ely, Mark Tushnet, Ronald Dworkin, and Cass R. Sunstein, and show that interpretation of Constitution relates to jurisprudence. For example, they discuss constitutional Interpretation based on subjective judgment of justices, or degree of justification by the theory. And their positions are different respectively. But, including skeptic positions about theory, they all logically talk about validity in own position, and the discussion is related to jurisprudential discussion. Their arguments show that if we argue about constitutional interpretation logically, the argument will finally step into the domain of the argument of jurisprudence. The position that jurisprudence has nothing to do with interpretation of constitution is possible. But, it is necessary for the claim in itself to be justified by logic or theory. And if we try the justification, we cannot avoid jurisprudential argument.

著者

神原 和宏

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

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vol.2007, pp.53-65, 2008 (Released:2021-03-31)

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The purpose of this article is to examine Rousseau’s legal theory in relation to the tradition of republicanism. Rousseau defines a republic as a state which is governed by laws, i.e. the expression of the general will, and also as a state in which public interests, not private ones, are pursued. According to Rousseau, it is in such a state governed by laws that the individual liberty and equality, namely ultimate goals of all states, are secured. Liberty of men consists in obedience to laws. Liberty in this position makes a contrast to the state of servitude in which people submit themselves to an arbitrary will of others who pursue private goods. Maurizlo Viroli and Fabian Spitz call this position republican liberty. Rousseau shows keen interests in themes on republican traditions such as corruptions of a political body and the conquest of them. These interests are origins of his positive attitudes toward the importance of equality, virtue, and public education in a political body. The research into Rousseau’s republican ideas will help to clarify part of the rich resource of Rousseau’s legal theory, and at the same time will provide a clear idea of his contribution to the modern legal thought.

著者

高橋 洋城

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

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vol.2007, pp.66-79, 2008 (Released:2021-03-31)

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In European history of thought, natural law theory was originally an argument of independence and autonomy of human reason from religion and political power. Autonomy of reason means at the same time autonomy of law. But this autonomy and independence depended still upon the objective human nature that cannot be controlled by humans. Although modern natural law theory has advanced the autonomous character of law, it still permits a dependence on the transcendent to reason. For example, social contract is one of the typical concepts in modern natural law theory, and it has given the law a foundation that is grounded on an action of people themselves. But this concept of contract has in a sense a character of facts that are transcendent to human reason. In this course of natural law thoughts, the significance of Kantian thought consists in radicalisation of autonomy of reason and law. He idealised the concept of social contract and we can see here a progress in autonomy. Moreover Kantian “moral laws” (sittliche Gesetze) mean selflegislation by freedom of human, and its contents point out the coexistence of freedom of humans : It represents an idea of legal order. On the other side, his idea of law has its grounds in this moral law and it expresses the coexistence of human freedoms. By this self-referential grounding, Kant gave a foundation for modern law and made it more autonomous. This grounding by Kant influenced and has changed factually the way of writing among the modern natural law theorists. Kant’s self-referential grounding, however, does not mean that it brings the closed selfreferential System in N. Luhmann’s sense. It should be rather taken as a procedural autonomy in the meaning that actual autonomous process of critics among citizens realises the autonomy of reason.

著者

戒能 通弘

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

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vol.2007, pp.80-90, 2008 (Released:2021-03-31)

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The legal thought of Jeremy Bentham (1748-1832) is, like his political theory, developed to respond for the modernization of the British society by the industrial revolution. Also, Bentham can be depicted as a typical modern theorist who thought to develop a universally applying prescriptive theory. The purpose of this paper is to reexamine the theoretical, social background and the substance of Bentham’s legal positivism and utilitarianism by the viewpoint of the ‘autonomy of law’ and the ‘universality’, which are particularities of the modernity. In this paper, at first, I want to show the modernity of Benham’s legal thought by comparing it with the preceding classical common law theory. The difference between Bentham’s legal thought and the classical common law theory depends on the difference of the respective view of the community or the society. Bentham perceived that the gemeinschaft or the ‘society of a same value’, which the classical common law theory presupposed, has fallen after the Industrial revolution and proposed the autonomy of law to resolve the ‘co-ordination problem’. In this paper, I also want to argue the codification theory of Bentham, which has been my mainresearch project. To accomplish the greatest happiness of the greatest number, Bentham tried to replace the common law with his Pannomion (comprehensive code of laws), which is thought to be universal. If one of the features of the modernity is the pursuit of the universality, we can find a typical example in Bentham’s theory of codification.

著者

永尾 孝雄

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.2007, pp.91-103, 2008 (Released:2021-03-31)

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Hegel’s Philosophy of Right is neither a theory of jurisprudence nor a theory of modern natural law. The subject of the Philosophy of Right is the actuality of right and this lies in the Idea of Freedom. According to Hegel the philosophical science of right does not derive a system of ahistorical norms of right from the concept of freedom, but representing a new methodological beginning takes the path to the idea as the dialectically contradictory progress of the historical formation of institutions and recognizes this indirect method of reconstruction as a necessary condition for knowledge of the dialectic of the logical concept itself. The Philosophy of Right’s dialectical founding in the self-development of the concept leads him (Hegel) to make a trichotomy of practical domain into ‘Abstract right’, ‘Morality’, ‘The Ethical Life’. Whereas a clear parallel can be drawn between abstract right and morality, and the modern categories of natural law and subjective morality, applying the comparison to the third part of the Philosophy of Right creates some difficulties. They arise not only from the way in which it is structured into family, civil society and state, but from the title ‘Ethical Life’ itself. Ethical life means for Hegel the same connection between morality and politics which was essential for the traditional doctrine of the ethical-legal constitution of the state and its unity with civil society. Even in this division of the third part of the Philosophy of Right Hegel is taking up a long tradition in order to dissolve it by means of dialectics. One of the most important reasons for the dialectical dissolution of traditional categories lies in the introduction of civil society which is epoch-making in the history of social-political philosophy. Just as the Hegelian concept of civil society points to the changed structure of the family, so it relates also to the altered position of the state. The state and civil society, which had traditionally been linked by the relational concept of societas civilis, must first position themselves in a relationship which is one of division or difference. Marx puts an end to the mediation between civil society and state by reversing Hegel’s speculative nterpretation of their relationship. It is the state that is a form of appearance of civil society, and the latter, which Hegel could relegate to the position of the world of ethical appearance, is actually the reality of political economy. In this connection, see Marcuse: “Hegel’s demand for a strong and independent state derives from his insight into the irreconcilable contradictions of modern society.” Thus Habermas writes: “Hegel was the first philosopher to develop a clear concept of modernity. We have to go back to him if we want to understand the internal relationship between modernity and rationality, which, until Max Weber, remained self-evident and which today is being called into question.” It is not fortuitous that the discussion (Horkheimer, Adorno, Marcuse, Habermas) of the relationship between freedom, right and the state e on the basis of a society emancipated from political rule has once again begun with Hegel.

著者

堅田 剛

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

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vol.2007, pp.104-115, 2008 (Released:2021-03-31)

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This paper reports the German historical jurisprudence (die historische Rechtswissenschaft) in the 19th century, and shows the meaning of so-called modern times for F. C. v. Savingy and J. Grimm. Savigny was the founder of the historical jurisprudence, and J. Grimm, the oldest of Grimm brothers, was a Savigny’s favorite disciple. The outline of this paper is as follows. 1) The Roman Law as modern and the German Law as pre/post modern While the nature of the roman civil law is individual and therefore modern, the nature of the German custom law is collective therefore pre-modern or post-modern. Savigny as Romanist studied the Roman law in order to found the German modern science of civil law. But Grimm as Germanist studied the German custom law in order to identify German peculiar history. 2) Modernity and Anti-modernity of the Historical Jurisprudence Savigny’s historical jurisprudence aimed actually not to research the historical sources of law, but to construct entirely the systematic jurisprudence as the science of law. Grimm’s historical jurisprudence was rather historical, because for Grimm the German law was the history itself of his nation. In this sense, Savigny’s jurisprudence is modern, Grimm’s is anti-modern. 3) The Completeness of the Code and of the Jurisprudence Savigny did not believe the completeness of the code, but the completeness of the jurisprudence. For Savigny the jurisprudence must be strict science as mathematics or geometry, but for Grimm the jurisprudence is non-strict as literature. 4) The Science of Law and the Poesy of Law Savigny’s historical jurisprudence was the science of law or legal science (Rechtswissenschaft), and we can name Grimm’s the poesy of law or legal poesy (Rechtspoesie). Savigny’s legal science is constructed by logical legal notions (Rechtsbegriffe), and Grimm’s legal poesy by poetic legal symbols (Rechtssymbole). In this sense, Savigny was modern, Grimm was pre- or post-modern.

著者

南 利明

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

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vol.2007, pp.116-127, 2008 (Released:2021-03-31)

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Was National Socialism a negation or a radicalizatlon of modernism? The fact that A. Hitler referred to “a revolution quite opposite to the French Revolution” suggests that Nazis of that time advocated anti-modernism. According to T. W. Adorno and M. Horkheimer, negation of Enlightenment can be seen in the National Socialism movement, which not only denied individualism, liberalism and equality but also executed the planned extermination of Jews and valueless life such as psychopaths, genetically feeble-minded, and newborn crippled children. Nevertheless, a sound argument posits that the rule of National Socialism, whose purpose was to create the new human being and orchestrate the whole individual human life, was quintessentially and radically modern. Taking a cue from the discourse of M. Heidegger, we will show the modernism in National Socialism.

著者

笹倉 秀夫

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

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vol.2007, pp.128-135, 2008 (Released:2021-03-31)

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This comment, firstly, summarizes the nine presentations: Six presenters analyzed legal thinkers who founded the modern way of thinking, while other three analyzed legal thinkers critical of modernity. All nine speakers, however, share a common image of modernity in legal ideas; They presuppose independent individuals who form social institutions based on their rational calculation. Secondly, this comment argues who the first typical modern social thinkers should be ; From this perspective, the line Hobbes - Mandeville - Adam Smith - Hume - Bentham is most important, because they all constructed social theory based upon self-love, which had been rejected since the Greek Antiquity. Thirdly, this comment argues that we should also value the Machiavel lian Humanism, whose pluralistic-dialectical way of thinking had been an important counterpart to the Cartesian-Hobbesian scientific modernity. Lastly, this comment argues that we should evaluate the pre-modern traditions that contributed to the formation of modern social thinking. In order to make this point clear, this comment traces the history of the idea of liberty since the Greek Antiquity, analyzing how pre-modern liberties (the Greco-Roman liberty, the Christian freedom, the liberties of the Middle-Ages) underlie the modern liberty.

著者

桜井 徹

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.2007, pp.136-146, 2008 (Released:2021-03-31)

著者

酒匂 一郎

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

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vol.2007, pp.147-153, 2008 (Released:2021-03-31)

著者

若松 良樹

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.2007, pp.154-160, 2008 (Released:2021-03-31)

著者

桜井 徹

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

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vol.2007, pp.1-13, 2008 (Released:2021-03-31)

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The Annual Meeting of Legal Philosophy 2007 was held at Doshisha University on November 10-11 2007. Its main theme was “What is Modernity for the History of Legal Ideas?”, and nine speakers and one commentator were invited to discuss the meaning and importance of modernity for contemporary legal philosophers. The keynote speech points out that such distinguished thinkers as Hannah Arendt and Charles Taylor use the concept of “alienation” to characterize the intellectual and material movement of modernity. Taylor describes a significant feature of the modern self as “disengaged” not only from the outer world but also from its own body, abilities, inclinations and experiences; it can now work on and discipline these properties until they meet the desired specification. According to Taylor, the modern self that can thus remake Itself is a “punctual” self. Punctual self is a necessary condition not only of what C. B. Macpherson calls “possessive individualism”, but also of social contract theory, since only individuals capable of absolute self-ownership can commit themselves to greater political society and its rulers. The speech also points out that David Hume dramatically reduces Lockean punctual self to “a kind of theatre, where several perceptions successively make their appearances”, and thereby anticipates the subsequent disintegrative process of modern disengaged self. Moreover, Hume asserts that we must first enter a sort of “convention”, that is, “a general sense of common interest; ...which induces them [all the member of the society] to regulate their conduct by certain rules”, in order to establish the rules of private property and of promise. The author claims that Hume’s ideas of the personal identity and the basic rules of conduct suggest a sort of “post modern” insights into the fundamental structure of modern society.

著者

小林 公

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

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vol.2007, pp.27-39, 2008 (Released:2021-03-31)

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In recent years various attempts have been made to trace the origins of modern subjective rights back to scholastic sources. In the debate about scholastic theories of rights, William of Ockham has sometimes been identified as the primary source for an idea of subjective right, an idea in sharp contrast to a classical objective conception of rightness exemplified in Thomas Aquinas’s doctrine of natural law. In this debate most scholars now agree that it was the fourteenth-century dispute between Pope John XXII and the leadership of the Franciscan Order concerning the doctrine of evangelical poverty that first drew the concept of subjective natural rights into the center of a major public controversy involving a reigning pope and some of the leading intellectuals of the day, Ockham himself included But what marks a theory of rights as modern is not that some subjective rights discourse is employed in it, but that the rights discourse in it is liberated from the natural order of things characteristic of the classical legal thought. In Ockham, it was not, as it is usually thought, the Franciscan poverty dispute, but his nominalistic theology of absolute power of god that really contributed to the emergence of modern rights discourse. Perhaps the most well-known feature of Ockham’s philosophy is his denial of real universal entities in his ontology. But a second, equally important feature of it is his claim that there is no philosophical reason to postulate real entities at all in all ten of Aristotle’s categories, but only in two, namely substance and quality. So, in Ockham’s ontology there are no real entities other than individual substances and individual qualities inhering in substances. From the theological view point this individualistic and nominalistic ontology was a corollary from the absolutism of God’s power which also implied the destruction of teleological order of the universe, and this in turn led to the emergence of the subjective conception of “good” which is at the heart of modern theory of rights.