愤恨、惩罚与正义——亚当·斯密惩罚理论的一种解读

愤恨是人性中必不可少的组成部分.在斯密看来,这种通常似乎令人憎恶的激情,其基于合宜性的表达却成为捍卫社会正义与平等的心理机制.作为立即和直接促使人们去惩罚的情感,尽管需要怀疑其合理性,但合宜的愤恨不仅成为社会惩罚的基础,也是正义的保证.它所确立的正义感,肯定惩罚的正当性而确认正义的法则体系,其所衍生的功过赏罚的报偿结构,也将促成人性的完善和社会公正的实现.     

法律与复仇的历史纠缠——从古代文本透视中国法律文化传统

本文意欲将复仇及其与法律之间的关系作为探寻中国古代法之精神的进路,因为对于中国古代的立法者和执法者而言,复仇是一个触及中国古代法律理念之核心的根本问题.本文试图勾画复仇在中国传统社会中逐渐被法律概念化的路径.在勾画古典时期社会情境中有关复仇的法律疑问之后,本文分析了唐宋时期有关复仇的四种法律观念,进而指出,上述关于复仇的法律观点即为明清时期有关复仇的法律文本及解释的主要基础和理论渊源之一.最后,得出结论:在传统中国,古代法之于复仇,大致经历了一个混乱--选择--确定的历史过程,其间,于古代法的制定者、执行者和解释者的言行中,特别是在帝国晚期,体现出对帝国法律权威的尊重与维护.这一结论,或许与一些西方和中国学者对于中国古代法律传统的解读有所不同.     

法律正义和正义美德

正义是一个复杂而重要的伦理学主题,当代伦理学家罗尔斯把正义当成是一种法律制度,而古代亚里士多德却更为正确地指出,法律正义还不是一种完全的正义,正义毋宁更是一种美德,它是一切美德的总汇。     

网络道德惩罚的公正性分析

现代都市生活的特点、网络事件的强烈刺激以及道德焦虑心理是网络道德惩罚发生的原因.它的表现形式多样,包括谴责性言论、顶帖、网络通缉令、对现实生活的干扰以及排斥等.公正的网络道德惩罚具有积极的作用,是一种善.由于群体极化、绝对化的要求以及道德盲视的作用,网络道德惩罚有时会有失公正.鉴于此,可以通过给予话语权、从容的推理以及行动前的反思来确保网络道德惩罚的公正性.     

Provider Conscientious Refusal of Abortion,Obstetrical Emergencies,and Criminal Homicide Law

Catholic doctrine’s strict prohibition on abortion can lead clinicians or institutions to conscientiously refuse to provide abortion, although a legal duty to provide abortion would apply to anyone who refused. Conscientious refusals by clinicians to end a pregnancy can constitute murder or reckless homicide under American law if a woman dies as a result of such a refusal. Such refusals are not immunized from criminal liability by the constitutional right to the free exercise of religion or by statutes that confer immunity from criminal homicide prosecution. Core principles of the rule of law require the state to protect the lives of all persons equally and to place the life and health of persons above any the interests of providers have in moral integrity or in respecting the moral status of prenatal humans. In some states criminal liability related to conscientious objection also applies to corporate hospital officials.     

法律的正义性价值——从富勒的两则虚拟案例谈起

《斯派伦辛探险者案件》与"怨毒告密者难题"是美国著名法学家富勒设计的两个虚拟案件,他试图以此来说明法与不法的界限以及法律与道德的关系.本文从法律及其正义价值的论辩性角度来推理这两个案例,抓住其中的"极端性"因素,进而分析富勒提出其著名的"法律的内在道德"理论的条件,并尝试着更深入地解读富勒的"程序自然法"理论的学术内涵.     

Truth,Ramsification, and the Pluralist's Revenge

Functionalists about truth employ Ramsification to produce an implicit definition of the theoretical term true, but doing so requires determining that the theory introducing that term is itself true. A variety of putative dissolutions to this problem of epistemic circularity are shown to be unsatisfactory. One solution is offered on functionalists' behalf, though it has the upshot that they must tread on their anti-pluralist commitments.     

Non-reflexivity and Revenge

Journal of Philosophical Logic - We present a revenge argument for non-reflexive theories of semantic notions – theories which restrict the rule of assumption, or (equivalently) initial...     

Female-Perpetrated Homicide in South Korea: A Homicide Typology

Using cluster analysis, the current study examined the extent to which distinct types of homicides are present using national data of female-perpetrated homicides in South Korea. The cluster analysis showed that the taxonomic structure of this sample is best reflected by five subordinate clusters: Cluster 1: Non-traditional intimate partner homicide; Cluster 2: Family homicide; Cluster 3: Traditional intimate partner homicide; Cluster 4: Premeditated homicide by unmarried women; and Cluster 5: Nonpremeditated homicide by unmarried women. The subsequent analysis revealed that each subtype of homicide has unique situational characteristics. The implications for the prevention strategies and future studies are discussed.     

The Benefits,Costs, and Paradox of Revenge

In this article, we examine the psychology of revenge. We begin by discussing challenges associated with defining revenge. We then review the relative costs and benefits associated with taking revenge. Although revenge can deter future harm, promote cooperation, and restore avengers’ self-worth and power, it can also contribute to conflict escalation and adverse psychological outcomes for avengers, such as depression and reduced life satisfaction. Next, we examine the prevalence of revenge. In distinguishing between the desire for revenge and act of revenge, we challenge the notion that the act of revenge is an automatic or pervasive response to injustice. We highlight four factors that influence whether victims of injustice choose to take revenge: the persistence of anger, perceptions of the costs of revenge, cultural and religious values regarding revenge, and the presence of external systems that can restore justice on behalf of victims.     

Emotions, Retribution, and Punishment

I examine emotional reactions to wrongdoing to determine whether they offer support for retributivism. It is often thought that victims desire to see their victimizer suffer and that this reaction offers support for retributivism. After rejecting several attempts to use different theories of emotion and different approaches to using emotions to justify retributivism, I find that, assuming a cognitive theory of emotion is correct, emotions can be used as heuristic guides much as suggested by Michael Moore. Applying this method to the actual emotional reactions of victims' relatives, however, does not find support for retributivism. Instead, it suggests punishment should be understood as part of a process of recovery with a complex set of demands. Retributive concerns can play a role in the process, but they don't have the priority that retributivism requires.     

Crime, Prohibition, and Punishment

Nigel Walker's first principle of criminalization declares that 'Prohibitions should not be included in the criminal law for the sole purpose of ensuring that breaches of them are visited with retributive punishment'. I argue that we should reject this principle, for 'mala prohibita' as well as for 'mala in se': conduct should be criminalized in order to ensure (as far as we reasonably can) that those who engage in it receive retributive punishment. In the course of the argument, I show why we should not see the criminal law as consisting in 'prohibitions'; I explain different species of mala prohibita, and show how their commission does involve genuine wrongdoing; and I show the importance of distinguishing the question of regulation from that of sanction.     

Communication,Punishment, and Virtue

This essay suggests that while Antony Duff's model of criminal punishment as secular penance is pregnant with possibilities for theological reception and reflection, it proceeds by way of a number of separations that are brought into question by the penitential traditions of Christianity. The first three of these—between justice and mercy, censure and invitation, and state and victim, constrain the true communicative character of his account of punishment. The second set of oppositions, between sacrament and virtue, interior character and external action, and formal and moral reconciliation, subject the model of state punishment as secular penance to problematic liberal and libertarian constraints. A postsecular analogy, outlining a theology of the invitational nature of divine judgment, and drawing on Thomas Aquinas's account of penance as both sacrament and virtue, is proposed.     

Punishment,Forgiveness and Reconciliation

It is sometimes thought that the normative justification for responding to large-scale violations of human rights via the judicial appararatus of trial and punishment is undermined by the desirability of reconciliation between conflicting parties as part of the process of conflict resolution. I take there to be philosophical, as well as practical and psychological issues involved here: on some conceptions of punishment and reconciliation, the attitudes that they involve conflict with one another on rational grounds. But I shall argue that there is a conception of political reconciliation available which does not involve forgiveness and this forms of reconciliation may be the best we can hope for in many conflicts. Reconciliation is nevertheless likely to require the expression of what Darrell Moellendorf has called ‘political regret’ and the denunciatory role aspect of punishment makes it particularly well-suited to this role.