著者

松沢 俊樹

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.2004, pp.172-180,199, 2005-09-30 (Released:2008-11-17)

参考文献数

16

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I've been discontented with the absence of the theory of international justice, both in the theory of justice and in International Relations. “The Law of Peoples”, J. Rawls'theory of international justice, is his third main work, and I think that it's useful to inquire his theory for constructing the theory of international justice. Therefore, in this paper, I try to examine his theory. In the first chapter, I explicate the basic structure of Rawls' theory. His theory is an answer to one of four problems, and the principles of international justice are worked out by the extension of political liberalism. To begin with, I explain the constituents of his theory to elucidate its features. These constituents are the theory of justice as realistic utopia, “the society of peoples” as the international society, “political constructivism” as the procedure for working out “the law of peoples”, “the law of peoples” as the principles of international justice and his own peculiar conception of human rights, the theory of democratic peace for keeping the international stability. In sum, he tries to show that political liberalism is universal enough to work out the principles. But, I argue that he privileges liberalism, and objectifies nonliberal peoples, therefore, his pluralism is only apparent, and can't avoid westernism. In the second chapter, I investigate two fundamental issues as follows. First, I argue that Rawls'theory can't avoid westernism, since he privileges political liberalism and human rights. Therefore, alternatively, I propose M. Walzer's international pluralism. Second, I argue that Rawls'critique of R. Gilpin isn't persuasive, since Rawls can't refute neorealism and the theory of hegemonic stability.Accordingly, I contend that Gilpin is more persuasive, since he accurately recognize the effectiveness of power in the international society.

著者

中川 丈久

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.2005, pp.42-57,199, 2006-10-30 (Released:2010-02-15)

参考文献数

15

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The author first discusses why Japanese scholars in administrative law have seldom been attracted to the term “rule of law” despite frequent use of the concept in constitutional law, philosophy of law, and political theory. Out of four possible meanings of the rule of law (1) “supremacy of law, ” (2) “prior use of very formal procedures” (either law-making in the assembly or adjudication in the court of law), (3) “substantive adequacy of law” (including guarantee of human rights), and (4) “separation of functions” (rule-maker/rule-enforcer and prosecutor/adjudicator), the Japanese adminis-trative law theories have exclusively focused on the “supremacy of law” and the “prior use of very formal procedures” (but only the assembly version, which is commonly referred to as “doctrine of statutory reservation” meaning that prior statutory authorization of administrative activies is required). The author argues that the rule of law as conceptualized in Japanese public law does not include, as far as administrative process is concerned, the court of law version of the “prior use of very formal procedures” nor the “separation of functions”. He also notes that administrative law scholars do not necessarily discuss “substantive adequacy of law” simply because that is for constitutional law theories. He then discusses the importance for the Japanese administrative law to pay more attention to the court of law version rather than the assembly version of the “prior use of very formal procedures”. Though the traditional administrative law theories have focused on the assembly version, i.e., the doctrine of statutory reservation, it has become clear that in the administrative state, the failure of the assembly version is almost destined. In an effort to keep the current administrative state within the rule of law, he argues, the Japanese public law theories should reengineer its concept of the rule of law, and reform its understanding of judicial courts' role in controlling the administrative state under a new version of “rule of law.” From this standpoint, the author discusses implications of the 1994 amendment of the Adminis-trative Case Litigation Law to the remodeling of the rule of law. He points out the two “messages” of the amendment which encourage expansion of both standing to sue and use of Tojisya (regular) suits.

著者

深田 三徳

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.2005, pp.7-17,200, 2006-10-30 (Released:2010-02-15)

参考文献数

13

被引用文献数

1

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“The Rule of law” has been used in different meanigs. But this is a legal and political ideal or principle, and there are three kinds of the rule of law. First is the rule of law in the modern constitutional laws of Western countries. Second is the rule of law in Japanese constitutional law, and third is the rule of law as a political ideal. Third one relates to what a good government or legal system should be. At first, the history and development of the rule of law in modern constitutional laws of Western countries is considered. Next, the legal scholars' different views on the rule of law in Japanese constitutional law are examined. Finally, formal conceptions and substantive conceptions about the rule of law as a political ideal are discussed. One of formal conceptions is formal legality, which was maintained by Lon L. Fuller, J.Raz and R.S.Summers etc. This is important for other kinds of the rule of law as well. On the other hand, substantive conceptions maintain the rule of just or good laws. But there is much controversies about what just or good laws are. Other several problems about the rule of law are also discussed.

著者

山田 八千子

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.88-104,202, 2005-09-30 (Released:2008-11-17)

参考文献数

19

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In this paper I presuppose that liberty has a structure. Such structure of liberty also exits in private law. I would especially deal with some issues of contract law. Contract law is the core in libertarian legal theory. That is a reason why I focus on contract law. Libertarians respect the principle of freedom of contract. This is one of main principles of so called “classical private theory” or classical contract theory. By contrast, modern contract law is based on Welfarism which is criticized by libertarian in general. If modern contract theory is in harmony with Welfarism, it seems that libertarianism contributes not to these field of modern contract law theory. But I believe that it is a misunderstanding about libertarianism. We should explore practical implication of libertarianism for modern contract law. I argue that libertarianism provide useful suggestions for resolving a number of problems that modern contract law theory have to cope with. Firstly I indicate a number of dilemmas in modern contract law as follows. Although in modern contract law “consent by parties” would be often regulated for weaker parties, such regulations are not necessary produce the desired result. This is the point of libertarian argument. For instance, I refer to an example with regard to a relation between landlord and tenant in Land and House Lease Law in Japan. Secondly I explain libertarian arguments about “the nature of market order” and “the knowledge of the circumstance in market”. Indeed there are substantial differences in knowledge between consumer and company. But such differences are not necessary good reason to intervene to market. According to libertarian argument, market order is one of spontaneous order. So the knowledge never exists in concentrated, integrated form. If we wish to make good use of such knowledge in market, we have to take seriously the libertarian theory.

著者

野崎 亜紀子

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.2004, pp.137-145,201, 2005-09-30 (Released:2008-11-17)

参考文献数

10

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The word “relationship” has a broad range of application and appears in various scenes in various meanings. My paper discusses on the concept of relationship within the legal theory, i. e. “relational rights”. Its main concern resides in the problem, “When and how can liberty be restricted from the perspective of the relationship” It looks as if the normative implication of relation depends on the context. But the concept of relationship here meets the criteria of legal universality which consists of equality principle. The concept of “relational right” is polysemous. While four aspects of it are analyzed in my paper; (1) Right to Relationship, (2) Right by Relationship, (3) Right in Relationship, and (4) Right as Relationship, a special attention is paid to the “Right in relationship”. Then, it is clarified that this right has a peculiar implication with obligatory content. Last, some criticisms of the usefulness of introducing this concept into legal theory are countered.

著者

若林 翼

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.146-153,200, 2005-09-30 (Released:2008-11-17)

参考文献数

21

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The purpose of this article is to put forward the argument that the role of the law and its relevant subjects should be to dismantle the structural discrimination in the society. The theories and practices of three feminisms liberal feminism, radical feminism and postmodern feminism are compared and discussed. The liberal feminism's argument is that the female is an autonomous “chooser” and the aim of laws against gender discrimination is to basically remove obstacles for women to allow them to choose and decide by themselves. On the other hand, radical feminism believes that the role of women has been constructed and is deeply embedded in the society, especially by men, therefore their desires are also constructed. To change the structural gender discrimination which women are also part of, it is essential that women be made aware of problems through “consciousnessraising, ” and that through this feminist law should embody women's point of view and redistribute resources and privileges. Postmodern feminism, however, denies the existence of the subject and rejects the use of law to subvert the gender system. The subject is not out there, it is rather the “effect” of the coherent but coercive institution of biological sex, gender, sexual practice and desire. According to Postmodern feminism, liberal feminist law keeps the cultural norms and radical feminist law excludes women who are not typical sacrificed “women.” Considering the postmodern feminism's insight, the subject could be understood as a process to become a unique person, and that the task of law is to give adequate room to each person where she could imagine the future herself and try to be that figure. In this way, the law would subsequently lead to the erosion of the fixed binary gender system.

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.2004, pp.112-127, 2005-09-30 (Released:2008-11-17)

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

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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.

著者

佐藤 憲一

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.154-162,200, 2005-09-30 (Released:2008-11-17)

参考文献数

25

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What kind of meaning exists in discussing legal indeterminacy today It is often said that there is no meaning since legal indeterminacy is stale common sense. However, the radical thesis that law is wholly indeterminate is not common sense. It is the very radical thesis that we want to discuss. According to this thesis, law does not have the capability to determine the legal rightness of actions in advance. This conclusion is obtained from Wittgenstein's rule-following considerations. According to Wittgenstein, any rule cannot pre-determine the rightness of actions. The current legal practice is characterized by legalism which premises the conventional understanding that law is (partially) determinate. But, the radical indeterminacy thesis collapses such an understanding. We have to turn toward post-legalism.

著者

土井 崇弘

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.128-136,201, 2005-09-30 (Released:2008-11-17)

参考文献数

21

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In this paper, I analyzed the theories of tradition in the works of F. A. Hayek and A. MacIntyre. Although both Hayek and MacIntyre criticize Enlightenment rationalism and emphasize the importance of tradition, there are great differences between their notions of tradition. While Hayek's notion of tradition is the tradition of rules of conduct, MacIntyre focuses on the tradition of intellectual enquiry. The differences also exist in their understandings of the relationship between liberalism and tradition, and in their theories of the progress of tradition. Hayek states that a successful free society will always in a large measure be a tradition-bound society, and that we should improve and revise our tradition of rules of conduct by remedying recognisable defects by piecemeal improvement based on immanent criticism. In contrast to Hayek's understanding, MacIntyre argues that in so far as we criticize the Enlightenment and emphasize the importance of tradition, we cannot defend liberalism. And MacIntyre also states that the enquiry of individuals as embodied in a tradition must involve not only discovery and an acknowledgement of what is given, but also the possibility of critical reflection on a tradition within which they find themselves, and such a critical reflection should not be restricted to piecemeal improvement based on immanent criticism. MacIntyre gave a detailed account of the progress of the tradition of intellectual enquiry in the theories of comparison between traditions. Finnally, based on both Hayek's and MacIntyre's theories of the progress of tradition, I present the theories of comparison between traditions of rules of conduct.

著者

橋本 努

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.18-29,205, 2005-09-30 (Released:2008-11-17)

参考文献数

6

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To what extent the libertarian defense of the self-ownership is valid? In this paper, I would examine Prof. Morimura's original theory on the justification of self-ownership which can be called as “physiological-intuitional defense of libertarianism.” A paradigmatic example which supports the theory is a lottery of eyeball: a public lottery in which every ordinary person is forced to participate and some elected. are asked to transplant his or her pair of eyeballs to the blind persons. Libertarians would not agree this lottery run by the government since physiologically imagined pain would be a good reason to deny it in the light of property rights for our own body parts. However, what about a lottery which transplants cornea under the condition of negligible pain and negligible deterioration of the eyesight? Some people would agree to join this lottery and the government could run it under the condition where people have a right not to take part in. This kind of lottery of transplantation shows how our physiological sense of self-ownership is ambiguous. The sense of the self-ownership of our body depends how we focus on its body parts. In addition, even if we could justify our body-ownership as a basis of our self-ownership, the degree of its justificatory power for our labor and products would not be the same. The question is to what degree a fundamentalist method of developing a systematic logic for self-ownership would be valid. I raise some alternative ways for the justification of private property rights system from a point of a Hayekian growth-oriented liberalism. Especially, I would examine a boundary problem of self-enslaving contract and a problem of “a pleasure of ownership” as a basis of private property rights system.

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

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.2004, pp.1-4,206, 2005-09-30 (Released:2008-11-17)

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The Annual Meeting of Legal Philosophy 2004 was held in Hiroshima on November 13-14, 2004, under the auspice of the Japan Association of Legal Philosophy (JALP). Its general theme was “Libertarianism and Legal Theory”. The concept of liberty or freedom has been discussed in philosophy of law in many different ways, but JALP had not yet devoted an annual meeting to this topic. In order to fill this gap, libertarianism both in theory and practice was focused on in this meeting, because libertarianism can be considered to be a purified version of classical liberalism as contrary to contemporary welfare liberalism. 7 speakers and 2 commentators were asked to make clear evaluations of libertarianism.

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

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.2004, pp.5-17,206, 2005-09-30 (Released:2008-11-17)

参考文献数

21

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It is often assumed that libertarianism presupposes rational, autonomous, strong individuals and is committed to “rugged individualism”. Not only critics of libertarianism, but also some libertarians themselves believe this is so. However, I disagree. In this paper, I argue that libertarians should not advance any particular controversial conception of human nature. Rather, they should acknowledge the great diversity amongst humankind as an undeniable fact and be wary of presenting some ideal form of human life. With respect to human nature as it is, it is partly because real people vary in so many respects such as their beliefs, ideals, values, talents, capacities, inclinations, tastes, temperament, knowledge and so on that everyone is to be allowed the liberty-right to pursue their own individual happiness at will and governments should abstain from imposing any particular ideal on their citizens and inhabitants. As for the ideal of human life, libertarianism must remain neutral among competing conceptions of the good life. It is true and only natural that libertarians, like others, should have their own views regarding human happiness and excellence, which are likely to differ from those of communitarians, welfare liberals and conservatives. However, libertarians do not hold such views qua libertarians, for a libertarian may voluntarily lead a life in a collectivist community or a disciplined monastery without any self-contradiction. Libertarianism is a doctrine of justice, not of human well-being or happiness. Nevertheless, atthe very least libertarianism makes one assumption concerning human nature, and that is that bar some exceptions all adults share minimal rationality and autonomy. Hencecomes the right of self-determination. While communitarians, left or conservative, exaggerate cultural diversity across nations and ethnic groups and make little of the diversity between individuals in a group, libertarians recognize basic universal humanity all over the world on the one hand and emphasize the differences between individuals on the other.

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

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

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

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.