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Ronald Dworkin: Seeking Truth and Justice through Responsibility 罗纳德·德沃金:通过责任寻求真理和正义
IF 1.2 Q3 Social Sciences Pub Date : 2023-04-28 DOI: 10.3390/laws12030041
Samra Ibric
According to Dworkin, “truth” is an interpretative concept. Why? Moral judgements are often the subject of disagreement because they are often the result of divergent conceptual understandings. If, on the other hand, we want to interpret concepts correctly, we have to deal with the analysis of the underlying values we attach to these concepts. Dworkin understands the true as a matter of interpretation, which—and this is often misunderstood—is capable of producing a correct conception of the truth. The truth is thereby directly related to justice. Dworkin even ties his theory of interpretation to an objective truth that can only produce conclusive reasons for a specific advocacy of a particular position in an argument after responsible and intensive debate—in the sense of his two-stage theory. In fact, it turns out that Dworkin’s search for and conception of an objective truth describes a (historical) process. We interpret what our ancestors have already interpreted and continue to understand (in a modified way). This reflexive responsibility is ours to bear; according to Dworkin, it is our responsibility to always stand up for truth through good arguments.
根据德沃金的说法,“真理”是一个解释性的概念。为什么?道德判断往往是分歧的主题,因为它们往往是不同概念理解的结果。另一方面,如果我们想正确地解释概念,我们就必须分析我们对这些概念的潜在价值。德沃金将真理理解为一种解释,这种解释——这经常被误解——能够产生对真理的正确概念。因此,真相与正义直接相关。德沃金甚至将他的解释理论与一个客观真理联系在一起,这个客观真理只能在经过负责任和深入的辩论后,在一场争论中为特定立场的具体主张提供确凿的理由——从他的两阶段理论的意义上讲。事实上,德沃金对客观真理的探索和概念描述了一个(历史)过程。我们解释我们的祖先已经解释并继续理解(以一种修改的方式)。这种反射性的责任是我们应该承担的;根据德沃金的说法,我们有责任通过良好的论据来捍卫真理。
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引用次数: 0
Introduction to the Special Issue «Justice Based on Truth» 特刊《基于真相的正义》简介
IF 1.2 Q3 Social Sciences Pub Date : 2023-04-28 DOI: 10.3390/laws12030043
Marcel Senn
When I received a request from MDPI in 2021, in the midst of the COVID-19 pandemic, to guest-edit a new online journal of philosophy of law and legal theory, including the history of their disciplines, it was immediately clear to me that this offer could be a great opportunity for all of us working in the field of philosophy of law or legal theory to develop an organ to exchange knowledge through this, as well as further crises [...]
当我在2021年收到MDPI的请求时,在COVID-19大流行期间,我应邀编辑一份新的法律哲学和法律理论在线期刊,包括他们学科的历史,我立即清楚地意识到,这一提议可能是我们所有在法律哲学或法律理论领域工作的人的一个很好的机会,可以通过这个机构来交流知识,以及进一步的危机[…]
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引用次数: 0
Truth and Justice in Spinoza’s Theological–Political Treatise and the Ethics 斯宾诺莎《神政论与伦理学》中的真理与正义
IF 1.2 Q3 Social Sciences Pub Date : 2023-04-28 DOI: 10.3390/laws12030039
Andreas Kistler
Spinoza’s philosophy argues for the freedom of individuals as singular beings in the state. This freedom is not perfect yet immanent. Freedom—according to the Ethics—is a consequence of true knowledge and virtue, which must be able to develop and can only be realised gradually. The state and the laws establish the framework that makes this freedom possible. Freedom and true knowledge are basic concepts of the metaphysical system. Justice, however, appears as a legal and political concept in Spinoza’s thought, which the philosopher did not discuss in depth. Nevertheless, the concept of justice has a specific significance in the philosophical context in which it occurs in the TTP—especially in the wisdom of King Solomon—and in the Ethics. Justice, on the one hand, strengthens harmony, security, and freedom. On the other hand, the freedom to philosophise forms a condition for justice to develop according to reason. The knowledge that justice has a importance in Spinoza’s thought is consistent with the complexity of his philosophy and makes its understanding more complete.
斯宾诺莎的哲学主张个人作为国家中的个体的自由。这种自由还不是完美的,还不是内在的。根据伦理学,自由是真正的知识和美德的结果,这些知识和美德必须能够发展,并且只能逐渐实现。国家和法律建立了使这种自由成为可能的框架。自由和真正的知识是形而上学体系的基本概念。然而,在斯宾诺莎的思想中,正义是一个法律和政治概念,哲学家对此没有深入探讨。然而,正义的概念在TTP中——尤其是在所罗门王的智慧中——以及在伦理学中——出现的哲学背景下具有特定的意义。一方面,正义加强了和谐、安全和自由。另一方面,哲学自由构成了正义按理性发展的条件。正义在斯宾诺莎思想中的重要性与他的哲学复杂性相一致,使其理解更加完整。
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引用次数: 0
Truth, Ethics and Legal Thought—Some Lessons from Dworkin’s Justice for Hedgehogs and Its Critique 真理、伦理与法律思想——从德沃金的《刺猬的正义》及其批判中得到的启示
IF 1.2 Q3 Social Sciences Pub Date : 2023-04-28 DOI: 10.3390/laws12030042
Matthias Mahlmann
This paper reconstructs some of the core elements of Dworkin’s epistemology of ethics. To understand why, for Dworkin, questions of legal philosophy lead to moral epistemology, the main points of Dworkin’s last restatement of his theoretical account of law are outlined. Against this background, the paper critically assesses the merits of Dworkin’s criticism of current prominent forms of skepticism and what it teaches us about the epistemology of legal thought.
本文重构了德沃金伦理学认识论的一些核心内容。为了理解为什么对德沃金来说,法律哲学问题会导致道德认识论,概述了德沃金最后一次重述法律理论的要点。在此背景下,本文批判性地评估了德沃金对当前突出的怀疑形式的批评的优点,以及它教会我们的法律思想认识论。
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引用次数: 0
Justice and Truth: A Leibnizian Perspective on Modern Jurisprudence 正义与真理:现代法理学的莱布尼兹视角
IF 1.2 Q3 Social Sciences Pub Date : 2023-04-28 DOI: 10.3390/laws12030038
Matthias Armgardt
The purpose of this essay is to outline the significance of Leibniz’s philosophy of law for the present. The essay traces the main features of Leibniz’s theory and points out what further developments of his approach are pending today. Finally, it shows how similar Leibniz’s basic convictions are to those of Ronald Dworkin.
本文的目的是概述莱布尼茨的法律哲学对现在的意义。本文追溯了莱布尼茨理论的主要特征,并指出他的方法在今天有待进一步发展。最后,它表明莱布尼茨的基本信念与罗纳德·德沃金的信念是多么相似。
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引用次数: 0
Thomas Aquinas, Ronald Dworkin, and the Fourth Revolution: The Foundations of Law in the Age of Surveillance Capitalism 托马斯·阿奎那、罗纳德·德沃金与第四次革命:监视资本主义时代的法律基础
IF 1.2 Q3 Social Sciences Pub Date : 2023-04-28 DOI: 10.3390/laws12030040
K. Smith
Since the publication of Shoshana Zuboff’s The Age of Surveillance Capitalism, the strategies of Surveillance Capitalists and appropriate responses to them have become common points of discussion across several fields. However, there is relatively little literature addressing challenges that Surveillance Capitalism raises for the foundations of law. This article outlines Surveillance Capitalism and then compares the views of Thomas Aquinas and Ronald Dworkin in four areas: truth and reality, reality and law, interpretation and social custom, and virtue and law; finally, it closes by asking whether the law alone can provide a sufficient response to Surveillance Capitalism. The overarching argument of the article is that, while Aquinas’s view of the foundations of law accounts for and responds to the challenges of Surveillance Capitalism more effectively than Dworkin’s, law alone cannot provide a sufficient response to this emerging phenomenon.
自Shoshana Zuboff的《监视资本主义时代》出版以来,监视资本主义者的策略及其适当的应对措施已成为多个领域的共同讨论点。然而,关于监视资本主义为法律基础提出的挑战的文献相对较少。本文概述了监视资本主义,并从四个方面对托马斯·阿奎那和罗纳德·德沃金的观点进行了比较:真理与现实、现实与法律、解释与社会习俗、美德与法律;最后,它在结尾询问,仅靠法律是否能对监视资本主义做出足够的回应。这篇文章的主要论点是,尽管阿奎那对法律基础的看法比德沃金更有效地解释和应对了监视资本主义的挑战,但仅靠法律无法对这一新兴现象做出充分的回应。
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引用次数: 0
Fuller, Dworkin, Scientism, and Liberty: The Dichotomy between Continental and Common Law Traditions and Their Consequences 富勒、德沃金、科学主义和自由:大陆法和普通法传统的二分法及其后果
IF 1.2 Q3 Social Sciences Pub Date : 2023-04-28 DOI: 10.3390/laws12030037
Nadia E. Nedzel
Dworkin’s and other analytic/positivist philosophers’ theoretical approach to law leads inexorably to politicization, totalitarianism, less justice, less trust in government, and less truth. A more practical approach is Fuller’s, which is based on experience of human behavior and an analysis of what has worked in the past. That is also the approach traditionally used in the common law system. This article uses a comparative study of the two Western traditions, their history, and their most prominent legal philosophers to explicate how and why Dworkin’s and Fuller’s approaches are consistent and inconsistent with those traditions, followed by a comparative analysis of the results obtained by prominent international NGOs. Dworkin’s approach, which grows out of analytic philosophy, is unworkable because like all scientistic theories, it treats human beings mechanistically, de-emphasizing personal responsibility, ignoring the need for individual incentive, and it assumes an all-encompassing, all-powerful government of experts to make legal decisions for a collectivity. Under Fuller’s common law approach, the proper role of law is to manage conflict, as it cannot be prevented and cannot always be resolved, thus building the public’s trust in government as unbiased and apolitical as possible. This concept of the rule of law places law above government, minimizes politicization, incentivizes personal responsibility, individual incentive, and entrepreneurship, and is the only true common good among men.
德沃金和其他分析/实证主义哲学家对法律的理论方法无情地导致了政治化、极权主义、更少的正义、更少的对政府的信任和更少的真相。富勒的方法是一种更实用的方法,它基于人类行为的经验和对过去行之有效的方法的分析。这也是英美法系传统上使用的方法。本文通过对这两种西方传统、它们的历史以及它们最著名的法律哲学家的比较研究,阐述了德沃金和富勒的方法是如何以及为什么与这些传统一致和不一致的,然后对著名的国际非政府组织获得的结果进行了比较分析。德沃金的方法源于分析哲学,是不可行的,因为就像所有的科学主义理论一样,它机械地对待人类,不强调个人责任,忽略了个人激励的必要性,并且它假设了一个包罗万象、无所不能的专家政府,为集体做出法律决定。根据富勒的普通法方法,法律的适当作用是管理冲突,因为冲突是无法预防的,也不可能总是得到解决,从而建立公众对政府的信任,使其尽可能公正和非政治。这种法治理念将法律置于政府之上,最大限度地减少政治化,激励个人责任、个人激励和创业精神,是男性中唯一真正的共同利益。
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引用次数: 0
Transitional Justice Process and the Justice Theory of Roland Dworkin 过渡司法过程与罗兰·德沃金的司法理论
IF 1.2 Q3 Social Sciences Pub Date : 2023-04-26 DOI: 10.3390/laws12030035
Helen Gyr
The determination of truth in the aftermath of war aiming at establishing justice and peace is a key element of a transitional justice (TJ) process. The theory of justice of Roland Dworkin deals with an approach in which the interpretation of values such as equality, liberty or truth are paramount. Dworkin’s theory of justice is applied to constitutional states and lays out how democratic values are negotiated. The goal of a TJ process is to lead a state towards democracy after a war or internal armed conflict. TJ processes as well as Dworkin’s theory of justice are to be understood as dynamic, which implies that they are subject to constant change and thus to be considered in their respective social, cultural, political, and economic contexts. This paper explores the relationship between truth and justice in the framework of a TJ trial and Roland Dworkin’s theory of justice. The TJ process in Colombia serves as a case study because that was where I conducted field research in TJ in 2019.
在战争结束后确定真相,以建立正义与和平,是过渡时期司法进程的一个关键要素。罗兰·德沃金的正义理论涉及一种方法,在这种方法中,对平等、自由或真理等价值观的解释是至高无上的。德沃金的正义理论适用于宪政国家,并阐述了民主价值观是如何协商的。TJ进程的目标是在战争或内部武装冲突后领导一个国家走向民主。TJ过程以及德沃金的正义理论应被理解为动态的,这意味着它们会不断变化,因此应在各自的社会、文化、政治和经济背景下加以考虑。本文以TJ审判和罗兰·德沃金的正义理论为框架,探讨了真理与正义的关系。哥伦比亚的TJ过程是一个案例研究,因为2019年我在TJ进行了实地研究。
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引用次数: 0
The Persistent, Pernicious Use of Pushbacks against Children and Adults in Search of Safety 为寻求安全而对儿童和成人持续使用推背
IF 1.2 Q3 Social Sciences Pub Date : 2023-04-23 DOI: 10.3390/laws12030034
M. Bochenek
Border pushbacks, including at the European Union’s external borders and by countries such as Australia, Mexico, Turkey, and the United States, are common—and in fact have become a new normal. These border policing or other operations aim to prevent people from reaching, entering, or remaining in a territory. Screening for protection needs is summary or non-existent. Pushbacks violate the international prohibitions of collective expulsion and refoulement, and pushbacks of children are inconsistent with the best interests principle and other children’s rights standards. Excessive force, other ill-treatment, family separation, and other rights violations may also accompany pushback operations. Despite formidable obstacles such as weak oversight mechanisms, undue judicial deference to the executive, and official ambivalence, domestic court rulings and other initiatives show some promise in securing compliance with international standards and affording a measure of accountability.
边境抵制,包括在欧盟外部边境以及澳大利亚、墨西哥、土耳其和美国等国的抵制,很常见,事实上已经成为一种新常态。这些边境治安或其他行动旨在阻止人们到达、进入或停留在一个领土上。保护需求筛查是总结性的或根本不存在。推回违反了集体驱逐和驱回的国际禁令,对儿童的推回不符合最大利益原则和其他儿童权利标准。过度武力、其他虐待、家庭分离和其他侵犯权利的行为也可能伴随着反击行动。尽管存在监督机制薄弱、司法部门对行政部门的过度尊重以及官员的矛盾心理等巨大障碍,但国内法院的裁决和其他举措在确保遵守国际标准和提供一定程度的问责制方面显示出了一些希望。
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引用次数: 1
When Criminals Abuse the Blockchain: Establishing Personal Jurisdiction in a Decentralised Environment 当罪犯滥用区块链:在分散的环境中建立个人管辖权
IF 1.2 Q3 Social Sciences Pub Date : 2023-04-15 DOI: 10.3390/laws12020033
C. Watters
In August of 2022, the United States Department of Treasury sanctioned the virtual currency mixer Tornado Cash, an open-source and fully decentralised piece of software running on the Ethereum blockchain, subsequently leading to the arrest of one of its developers in The Netherlands. Not only was this the first time the Office of Foreign Assets Control (OFAC) extended its authority to sanction a foreign ‘person’ to software, but the decentralised nature of the software and global usage highlight the challenge of establishing jurisdiction over decentralised software and its global user base. The government claims jurisdiction over citizens, residents, and any assets that pass through the country’s territory. As a global financial center with most large tech companies, this often facilitates the establishment of jurisdiction over global conduct that passes through US servers. However, decentralised programs on blockchains with nodes located around the world challenge this traditional approach as either nearly all countries can claim jurisdiction over users, subjecting users to criminal laws in countries with which they have no true interaction, or they limit jurisdiction, thereby risking abuse by bad actors. This article takes a comparative approach to examine the challenges to establishing criminal jurisdiction on cryptocurrency-related crimes.
2022年8月,美国财政部批准了虚拟货币混合器Tornado Cash,这是一款运行在以太坊区块链上的开源和完全去中心化软件,随后导致其在荷兰的一名开发人员被捕。这不仅是外国资产控制办公室(OFAC)第一次将其权力扩展到对软件的外国“人”进行制裁,而且软件的分散性和全球使用突出了对分散化软件及其全球用户群建立管辖权的挑战。政府声称对公民、居民和通过该国领土的任何资产拥有管辖权。作为拥有大多数大型科技公司的全球金融中心,这往往有助于建立对通过美国服务器进行的全球行为的管辖权。然而,分布在世界各地节点的区块链上的去中心化程序挑战了这种传统方法,因为几乎所有国家都可以声称对用户具有管辖权,使用户在与他们没有真正互动的国家受到刑法的约束,或者它们限制管辖权,从而有可能被不良行为者滥用。本文采用比较方法来研究对加密货币相关犯罪建立刑事管辖权的挑战。
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引用次数: 4
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