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The Dual‐Nature Thesis: Which Dualism? 二元论:哪种二元论?
Pub Date : 2020-09-01 DOI: 10.1111/raju.12295
Jan Sieckmann
According to Robert Alexy’s dual‐nature thesis, “law necessarily comprises both a real or factual dimension and an ideal or critical one.” I will suggest, first, that various dualisms need to be distinguished, in particular the empirical and the normative, the real and the ideal, the formal (procedural) and the substantive; second, that the dualism of the empirical and the normative and, within the latter, of the real and the ideal “ought,” is not specific to law but pertains to any normative system; and, third, that a dualism that distinguishes law from morality is a dualism of formal and substantive principles, which also serves to explain the authoritative character of law.
根据罗伯特·阿列克谢(Robert alexy)的二元性质论题,法律必然既包括现实的或事实的维度,也包括理想的或批判的维度。首先,我认为需要区分各种二元论,特别是经验与规范、现实与理想、形式(程序)与实体;第二,经验事物与规范事物的二元论,以及在后者之内,实在事物与理想事物的二元论;不是法律所特有的,而是属于任何规范体系的;第三,区分法律和道德的二元论是形式原则和实质原则的二元论,这也有助于解释法律的权威性。
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引用次数: 0
Legality and the Legal Relation 合法性与法律关系
Pub Date : 2020-03-19 DOI: 10.1111/raju.12292
A. Somek
According to Immanuel Kant, legality means the quality of an action to be merely and simply in conformity with a law. The article defends the significance of this notion and explains how it in-dicates the existence of a legal relation. The legal relation, in turn, is the result of resolving an antinomy between the social and the substantive dimension of moral judgment.
根据伊曼努尔·康德的观点,合法性意味着行为的性质仅仅和简单地符合法律。本文为这一概念的意义进行了辩护,并解释了它如何表明一种法律关系的存在。反过来,法律关系是解决道德判断的社会维度和实体维度之间的矛盾的结果。
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引用次数: 1
Soldiers as Public Officials: A Moral Justification for Combatant Immunity 士兵作为公职人员:战斗人员豁免的道德理由
Pub Date : 2019-12-01 DOI: 10.1111/raju.12256
M. Thorburn
How can we make moral sense of the international humanitarian law doctrine of combatant immunity? The doctrine is morally shocking to many: It holds soldiers on both sides of a war immune from criminal prosecution for their otherwise criminal acts of killing, maiming, destroying property, etc., carried out as part of their country's war effort. That is, soldiers who kill as part of an attack benefit from the immunity just as much as those defending their country. Traditionally, just war theorists have tried to provide situation‐specific arguments to show that soldiers on both sides had a good moral justification for their actions. Recently, self‐styled “revisionist just war theorists” have suggested that the doctrine of combatant immunity is just a convention designed to minimize harm. In this article, I suggest that the moral foundation of the doctrine lies in the status of soldiers as public officials in the service of their country. The reason why we hold them immune from prosecution for their war‐making acts is that such acts are properly thought of as acts of a state, rather than as acts of a particular individual. And the reason why states are immune from prosecution for their acts is one of moral standing: No other state has the moral standing to tell another how to carry out the matters that define its jurisdiction. So as long as a country deems (however implausibly) that it must use force to defend itself from aggression, then it may do what is required to defend itself. No other state has the standing to prohibit such acts or to punish those who carry them out. This argument is rooted in an understanding of how individuals may interact as free and equal under law. It does not aim at the perfection of human action, but it does serve to eliminate the worst forms of tyranny.
我们怎样才能从道义上理解国际人道主义法关于战斗人员豁免的原则?这一信条在道德上让许多人感到震惊:它认为战争双方的士兵在战争中犯下的杀戮、致残、破坏财产等犯罪行为不受刑事起诉,这些行为是他们国家战争努力的一部分。也就是说,作为攻击的一部分而杀人的士兵与保卫国家的士兵一样受益于这种豁免权。传统上,正义战争理论家试图提供具体的论据,以表明双方士兵的行为都有良好的道德理由。最近,self‐style “修正主义正义战争理论家”我认为战斗人员豁免原则只是一项旨在尽量减少伤害的公约。在本文中,我认为该学说的道德基础在于士兵作为公职人员为国家服务的地位。我们之所以认为他们的战争行为不受起诉,是因为这些行为被恰当地认为是一个国家的行为,而不是某个特定个人的行为。国家的行为免于起诉的原因之一是道德地位:没有任何一个国家有道德地位告诉另一个国家如何执行界定其管辖权的事项。因此,只要一个国家认为(无论多么难以置信)它必须使用武力来保护自己免受侵略,那么它就可以采取必要的措施来保护自己。任何其他国家都无权禁止这种行为或惩罚实施这种行为的人。这一论点植根于对个人如何在法律下自由和平等地互动的理解。它的目标不是使人类行为完美无缺,但它确实有助于消除最恶劣形式的暴政。
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引用次数: 3
A Pragmatic Reconstruction of Law's Claim to Authority 法律权威主张的语用重建
Pub Date : 2019-03-01 DOI: 10.1111/raju.12232
Horacio Spector
Raz holds that necessarily all legal authorities, even de facto authorities, make a claim to legitimate authority. He does not say that legitimacy is a necessary property of law. This view, which I call the claim view, constitutes my focal point in this paper. Many commentators have criticized this view. I discuss and dismiss three critiques of the claim view: the verification critique (the claim view is not empirically confirmed), the legalistic critique (law claims legal authority, not moral authority), and the semantic critique (legal obligations are semantically distinct from moral obligations). I submit that Raz equates the meaning of legal duties with that of moral duties and yet denies that legal statements entail moral propositions. In other words, I distinguish the semantic identity thesis from the semantic entailment thesis. Instead of a semantic interpretation of the claim view, I defend a presuppositional ascription of a general claim to moral authority to authoritative duty‐imposing and normatively committed uses of legal language by official spokesmen. I show that law’s claim to authority does not prove the truth of the sources thesis, because conceptual confusion or insincerity can affect the epistemic reliability of the propositions embodied in the claim, and because blatant immorality can altogether cancel law’s pragmatically presupposed claim to moral authority. I also argue that the claim view can only warrant two qualified versions of exclusive legal positivism, one of which is almost tautological, the other self‐contradictory. Finally, I suggest that exclusive legal positivism cannot be defended on conceptual grounds.
拉兹认为,所有的法律权威,甚至事实上的权威,都必须声称自己是合法的权威。他并没有说合法性是法律的必要属性。这种观点,我称之为主张观点,构成了本文的重点。许多评论家批评了这种观点。我讨论并驳斥了对权利要求观的三种批评:验证批评(权利要求观没有得到经验证实)、法律主义批评(法律要求法律权威,而不是道德权威)和语义批评(法律义务在语义上与道德义务不同)。我认为拉兹将法律义务的含义等同于道德义务的含义,但否认法律陈述包含道德命题。换句话说,我将语义同一性论题与语义蕴涵论题区分开来。我不是对主张观点进行语义上的解释,而是为一种预设的观点辩护,即把对道德权威的一般主张归于权威责任,即官方发言人强制使用和规范地使用法律语言。我表明,法律对权威的主张并不能证明来源命题的真实性,因为概念上的混乱或不真诚会影响该主张中所体现的命题的认识论可靠性,而且因为公然的不道德可以完全取消法律在实用上预设的道德权威主张。我还认为,主张观点只能证明排他性法律实证主义的两个限定版本,其中一个几乎是同义反复的,另一个则是自相矛盾的。最后,我认为排他性的法律实证主义不能以概念为基础进行辩护。
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引用次数: 2
Ownership, Use, and Exclusivity: The Kantian Approach 所有权、使用和排他性:康德的方法
Pub Date : 2018-06-01 DOI: 10.1111/raju.12200
E. Weinrib
Ownership combines the owner's right to exclude others from the owned object and the owner's liberty to use that object. This article addresses the relationship between using and excluding, by presenting Grotius's and Kant's classic accounts of ownership. Grotius's approach treats use and exclusivity as separate notions, with the latter evolving out of the former. For Kant, in contrast, use and exclusivity are integrated aspects of ownership as a right within a regime of equal reciprocal freedom. This article offers a Kantian critique of Grotius's account of the original right to use, and then presents Kant's notion of usability as the basis for his integration of use and exclusivity.
所有权是所有者排除他人使用其拥有的客体的权利和使用该客体的自由的结合体。本文通过介绍格劳秀斯和康德对所有权的经典描述,阐述了使用和排除之间的关系。格劳秀斯的方法将使用性和排他性视为不同的概念,后者是从前者演变而来的。相反,对康德来说,使用权和排他性是所有权的两个组成部分,是平等互惠自由制度下的一种权利。本文对格劳秀斯关于原始使用权的论述进行了康德式的批判,然后提出了康德的可用性概念,作为他将使用与排他性结合起来的基础。
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引用次数: 3
Risk, Precaution, Responsibility, and Equal Concern 风险、预防、责任、平等关注
Pub Date : 2017-09-01 DOI: 10.1111/raju.12163
A. Herwig, M. Simoncini
Systemic risks are risks produced through interconnected non-wrongful actions of individuals, in the sense that an individual's action is a negligible cause of the risk. Due to scale effects of interaction, their consequences can be serious but they are also difficult to predict and assess via a risk assessment. Since we can have good reason to engage in the interconnected activities giving rise to systemic risk, we incur a concurrent collective responsibility to ensure that the risks are fairly distributed and well regulated. James argues that fairness in this context requires taking reasonably available precautions ensuring for each risk-bearer a favourable ratio of expected benefits over expected losses. In sections 2 and 3 we argue that such a conception of fairness applies but only on the condition that the systemic risks created are irreversible risks and that the general background conditions of justice are imperfectly fair. When risks are reversible, compensatory justice can correct for unfairness in risk imposition. Where risks are irreversible, compensatory justice necessarily fails, giving rise to a collective responsibility to regulate fairly ex ante. Additionally, where background conditions of justice are fully fair and the systemic risk is well understood, risk bearers can be said to have consented to the systemic risk. If they are not fair, we argue that the primary political obligation should lie in fixing the fairness of the backgrounds of justice. A related reason for addressing the general background conditions of fairness is that James’ account of fairness in systemic risk imposition encounters a baseline problem. If expected risks and benefits are calculated again an unfair historic background condition, systemic risk imposition would not be fully fair. Section 4 shows why differences in evidentiary uncertainty as to probability and levels of harm and effective responses require a normatively appropriate response in the form of additional precautions. We show that the evidentiary standards set for risk-based cost-benefit analysis have a connection with deontology because they express a postulate of equal treatment in formal terms. Systemic risks can have different possible degrees of epistemological certainty due to factors of social and natural origin, such as more available research funding or higher degrees of complexity for some systemic risks but not others. These differences have to be mitigated by taking even greater precautions in difficult-to-research systemic risks.
系统性风险是由相互关联的个人非不法行为产生的风险,从某种意义上说,个人行为是风险的一个微不足道的原因。由于相互作用的规模效应,其后果可能很严重,但也难以通过风险评估来预测和评估。既然我们有充分的理由参与产生系统性风险的相互关联的活动,我们就承担了同时发生的集体责任,以确保风险得到公平分配和良好监管。詹姆斯认为,在这种情况下,公平要求采取合理可行的预防措施,确保每个风险承担者的预期收益与预期损失的有利比例。在第2节和第3节中,我们认为这样的公平概念适用,但只有在产生的系统性风险是不可逆转的风险以及司法的一般背景条件不完全公平的情况下才适用。当风险具有可逆性时,补偿正义可以纠正风险施加中的不公平。在风险不可逆转的情况下,补偿性正义必然失效,从而产生事先公平监管的集体责任。此外,在司法背景条件完全公平且对系统性风险有充分了解的情况下,风险承担者可以说是同意了系统性风险。如果它们不公平,我们认为首要的政治义务应该在于确定正义背景的公平性。解决公平的一般背景条件的一个相关原因是,詹姆斯对系统性风险施加中的公平的描述遇到了一个基线问题。如果在不公平的历史背景条件下再次计算预期风险和收益,那么系统风险的施加就不会完全公平。第4节说明了为什么证据不确定性在伤害的可能性和程度以及有效应对方面的差异需要以额外预防措施的形式采取规范适当的应对措施。我们表明,为基于风险的成本效益分析设定的证据标准与义务论有联系,因为它们在正式术语中表达了平等待遇的假设。由于社会和自然因素,系统风险可能具有不同程度的认识论确定性,例如更多的可用研究资金或某些系统风险的复杂性更高,而其他系统风险则不然。这些差异必须通过对难以研究的系统性风险采取更大的预防措施来缓解。
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引用次数: 2
Responsibility and Global Justice 责任与全球正义
Pub Date : 2017-03-01 DOI: 10.1111/raju.12153
Mathias Risse
The two traditional ways of thinking about justice at the global level either limit the applicability of justice to states - the only distributions that can be just or unjust, strictly speaking, are within the state - or else extend it to all human beings. The view I defend in On Global Justice (Risse [Risse, M., 2012]) rejects both of these approaches. Instead, my view, and thus my attempt at meeting the aforementioned challenge, acknowledges the existence of multiple grounds of justice. My purpose here is to explain what my view has to say about responsibility. First of all, I explain what my view implies about the responsibilities of the state for the realization of justice. Then I explain that in addition to obligations of justice, my view also gives rise to obligations of account‐giving. I end by sketching what all this implies for institutional reform at the global level.
在全球层面上思考正义的两种传统方式,要么限制了正义对国家的适用性——严格来说,唯一可以公正或不公正的分配是在国家内部——要么将其扩展到全人类。我在《论全球正义》(Risse [Risse, M., 2012])中捍卫的观点反对这两种方法。相反,我的观点,以及我为迎接上述挑战所作的努力,承认存在多种正义理由。我在这里的目的是解释我对责任的看法。首先,我解释了我的观点所暗示的国家在实现正义方面的责任。然后,我解释说,除了正义义务之外,我的观点也引起了交代义务。最后,我概述了这一切对全球层面的机构改革意味着什么。
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引用次数: 24
The Intensionality Behind Legal Concepts and Their Extensional Boundaries: Between Conventionalism and Interpretivism 法律概念背后的密集性及其外延边界:在约定主义与解释主义之间
Pub Date : 2016-12-01 DOI: 10.1111/raju.12142
Alexandra Arapinis, A. Condello
This article constitutes an attempt to reexamine a crucial issue of legal theory from the perspective of philosophy of language and of social ontology: by analyzing a jurisprudential case recently decided by the U.S. Supreme Court, we explain how Searle's account on rules in The Construction of Social Reality constitutes an important starting point for the clarification of the old jurisprudential debate between conventionalism and interpretivism. In a nutshell, we show that Searle's framework, while strictly conventionalist, makes it possible to conceive of the distinction between the semantic content of rules (their intended purpose) and their extension, by drawing a parallel with the idea of “deep conventions” (and “essential rules”) as well as with the semantic conventions in natural language. The paper thus touches on the broader problem of the relations between legal concepts and nonlegal values (law and morality).
本文试图从语言哲学和社会本体论的角度重新审视法律理论的一个关键问题:通过分析美国最高法院最近判决的一个判例案件,我们解释塞尔在《社会现实的建构》中对规则的解释如何成为澄清传统主义和解释主义之间旧的法理学辩论的重要起点。简而言之,我们展示了Searle的框架,虽然严格的约定主义,但通过与“深度约定”(和“基本规则”)的概念以及自然语言中的语义约定进行类比,可以设想规则的语义内容(它们的预期目的)和它们的扩展之间的区别。因此,本文涉及法律概念与非法律价值(法律与道德)之间关系的更广泛问题。
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引用次数: 2
Legal Speech and Implicit Content in the Law 法律言语与法律隐含内容
Pub Date : 2016-03-01 DOI: 10.1111/raju.12113
L. Hunt
Interpreting the content of the law is not limited to what a relevant lawmaker utters. This paper examines the extent to which implied and implicit content is part of the law, and specifically whether the Gricean concept of conversational implicature is relevant in determining the content of law. Recent work has focused on how this question relates to acts of legislation. This paper extends the analysis to case law and departs from the literature on several key issues. The paper's argument is based upon two points: (1) Precedent‐setting judicial opinions may consist of multiple conversations, of which some entail opposing implicata, and (2) if a particular precedent‐setting judicial opinion consists of multiple conversations, of which some entail opposing implicata, then no meaningful conversational implicatum is part of the content of that particular precedent‐setting opinion. Nevertheless, the paper's conclusion leaves open the prospect of gleaning something in between conversational implicature and what is literally said, namely, conversational impliciture.
对法律内容的解释并不局限于相关议员的言论。本文考察了默示和隐性内容在多大程度上是法律的一部分,特别是格里塞式的对话含义概念是否与确定法律内容相关。最近的工作集中在如何将这个问题与立法行为联系起来。本文将分析扩展到判例法,并在几个关键问题上脱离文献。本文的论点基于两点:(1)开创先例的司法意见可能由多个对话组成,其中一些包含相反的隐含含义;(2)如果一个特定的开创先例的司法意见由多个对话组成,其中一些包含相反的隐含含义,那么没有任何有意义的对话隐含含义是该特定判例意见的内容的一部分。然而,本文的结论为在会话含义和字面意思之间收集一些东西留下了前景,即会话含义。
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引用次数: 6
Arendt on the Crime of Crimes 阿伦特论罪之罪
Pub Date : 2015-09-01 DOI: 10.1111/raju.12084
D. Luban
Genocide is the intentional destruction of a group as such. What makes groups important, over and above the individual worth of the group's members? This paper explores Hannah Arendt's efforts to answer that question, and concludes that she failed. In the course of the argument, it examines her understanding of Jewish history, her ideas about “the social,” and her conception of “humanity” as a normative stance toward international responsibility rather than a descriptive concept.
种族灭绝是故意毁灭一个群体。是什么让群体变得重要,超越群体成员的个人价值?本文探讨了汉娜·阿伦特试图回答这个问题的努力,并得出结论,她失败了。在辩论的过程中,它考察了她对犹太历史的理解,她对“社会”的看法,以及她将“人性”作为国际责任的规范性立场而不是描述性概念的概念。
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引用次数: 4
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Public International Law eJournal
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