法律信仰转型中人的主体性

在西方法律传统的演变中,法律信仰的转型是伴随着人的主体性的凸显而发生的。基督教理论承认人的有限自由意志,在上帝之下,君主必须服从神法和以神法为依据的法律,个人意志可以高于君权,由此形成了神权保护民权、对抗王权的局面。在自然法理论中,自由意志被理性所取代,人依赖理性就可以制定出符合神法和自然法的世俗法。理性主义则认为,人不再需要神的帮助,仅凭理性的命令就可以制定出符合理性本身的法律,获得对法律的信仰。西方法律信仰的转型经历了从自由意志到理性主义的演变历程。当代中国法律信仰的基础是理性主义,将“公平”、“正义”等法治观念建立在理性的基础上,对处于目前文化境遇中的中国人来说是必然的选择。     

On the Origin of Shang and Zhou Law

This paper refutes the hypothesis that Shang and Zhou law or penal law originated with the Miao tribe. After examining the sociological theory that custom is the basis of law, I focus on the role of ritual-action and law in Shang and Zhou China embodied in the military, the administrative operations at court, and in the records and literature, to show that the scientific position provides a reasonable interpretation that the Shang people originated their own law. The evidence for Shang and Zhou law is examined. Finally, I critique the hypothesis for the non-Chinese origin of Shang law.     

Response to Edmund N. Santurri

Barth and Niebuhr seemed to be wary of natural law because each of them thought that the “natural” in natural law means that natural law has to be rooted in natural theology. However, natural law today is more cogently formulated without any natural theology at all. “Natural law” means that law can be derived from the twofold character or nature of human personhood: the capacity for a communal relationship with other humans, and the capacity for a covenantal relationship with God, both of which continually overlap in human life. The natural or external world only provides the backdrop for these human capacities; it does not determine them.     

Teaching Medical Law in Medical Education

Although the teaching of medical ethics and law in medical education is an old story that has been told many times in medical literature, recent studies show that medical students and physicians lack confidence when faced with ethical dilemmas and medico-legal issues. The adverse events rates and medical lawsuits are on the rise whereas many medical errors are mostly due to negligence or malpractices which are preventable. While it is true that many medical schools teach their students medical law and ethics, there are wide variations in what is being taught because there is no universally agreed syllabus. Yet the knowledge of medical law and ethics is closely relevant to the medical profession and that failure in abiding the law may result in serious civil or even criminal consequences. While this paper does not propose to lay detailed analysis of the relevant areas of law or ethics, it proposes to cover some legal areas so as to highlight and bring to attention the need for a medical law and ethics course. This article also considers the problems faced and recommendation as to future directions to be taken with respect to teaching medical law and ethics. It concludes with a suggested course outline for the teaching of medical law and ethics.     

竹简《文子》天道论初探

＂天道＂是中国思想史上的重要概念。在竹简《文子》中,天道不仅是对于世界万物起源的认识,也是对社会发展规律性的认识,它具有自然和社会双重属性。竹简《文子》的天道论继承了老子＂道生于有＂的思想,但否认＂有生于无＂,＂有＂是其终极。人的行为必须遵循天道。竹简《文子》中对于＂天道＂自然属性和社会属性的阐释,也为后世很多思想家所继承。     

Genealogy of Morality and Law

In order to clarify the relationship between morality and law, it is necessary to define both concepts precisely. Cultural realities refer to concepts which are more specifically defined if we focus towards the genealogy of those realities, that is to say, their motivation, function and aim. Should we start from legal anthropology, comparative law and history of law, law arises as a social technique which coactively imposes ways of solving conflicts, protecting fundamental values for a society's co-existence. Values subject to being protected are proposed by morality, the latter making subordination of law to morality inevitable. This explains that a great number of modern constitutions include a reference to fundamental moral values, that is to say, they have explicitly positivised moral contents. Legal reasoning, at all levels and expressions, needs to appeal to the aforementioned values. Constitutional reasoning, international law, legislative activity and judicial practice are studied to verify the latter. This subordination of law to morality sets out a serious problem: moralities are cultural realities which are only valid for a specific society. In order for law not to fall in a not very rational legal relativism, law should not be subordinated to morality, but to ethics, the latter understood as cross-cultural morality. The Universal Declaration of Human Rights was a step forward in this sense.     

Weber-Fechner behavior in symmetry perception?

The literature contains several allusions to the idea that detection of (mirror) symmetry in the presence of noise follows the Weber-Fechner law. This law usually applies to first-order structures, such as length, weight, or pitch, and it holds that just-noticeable differences in a signal vary in proportion to the strength of the signal. Symmetry, however, is a higher order structure, and this theoretical note starts from the idea that, in noisy symmetry, the regularity-to-noise ratio defines the strength of the signal to be considered. We argue that the detectability of the symmetry follows a psychophysical law that also holds for Glass patterns. This law deviates from the Weber-Fechner law in that it implies that, in the middle range of noise proportions, the sensitivity to variations in the regularity-to-noise ratio is disproportionally higher than in both outer ranges.     

Toward law–gospel harmony in Lutheran theology and ethics

Lutheran antipathy toward the law is harmful to Christian ethics. This antipathy arises from the false notion that law and gospel are opposed. However, the Lutheran Confessions show that law–gospel distinction does not necessarily imply law–gospel opposition. When law and gospel are properly defined, they interrelate harmoniously within a multiperspectival model of Christian ethics. Moreover, the third use of the law then emerges as the basic and primary use.     

康德实践理性的事实概念及其对自由的证明

康德实践理性的事实概念指的是道德律或道德律的意识,而道德律本身实际上是道德律的意识。道德律是某种自身肯定的东西,它作为事实肯定了纯粹实践理性的客观实在性,并通过理性的这一积极的概念,证明了它自身在实践上的客观实在性。正是通过道德律这一事实,在思辨哲学那里只具有消极性的自由的原因性的概念,在实践哲学中获得了积极的规定,也成为了一个“事实”。     

Law,Humanity, and Reason: The Chinese Debate,the Habermasian Approach,and a Kantian Outcome

This paper explores the subject-matter of the relationship between law and humanity, filling a significant lacuna in philosophy of law in the West today. Doing so, the paper starts with recasting the traditional Chinese conflict—in particular, the conflict between legalism and Confucianism—over law in a new light of the contemporary call for stopping crimes against humanity. It then explores Habermas’ insight into and illusion of law. Finally, it examines the internal relationship between law and humanity, contending that law must always treat humanity as a purpose, not as a tool to other ends, functioning to build a community of humanity; while a distinction exists between justice and benevolence, law must not be inhumane.     

Paternalism and the Criminal Law

ABSTRACT If it could be shown that law is, in some sense, a moral system the apparent contradiction between (moral) autonomy and (legal) heteronomy might be challenged. In order to prepare for such a challenge this paper questions the prevailing view that law is not in the business of enforcing morals. That is done primarily by using decisions of the criminal courts to show that the law does not always criminalise conduct merely to prevent harm to others. Paternalism is distinguished from the harm principle in order to show that the law (rightly or wrongly) sometimes seeks to secure that which is (thought to be) morally good, irrespective of the prevention of harm, at least overall harm.
If such an insight is well founded there are consequences for legal theory in that neither of the ruling paradigms (naturalism and positivism) seems able adequately to accommodate the view of law which emerges. Consequently, an attempt is made in the essay to develop a middle theory of law, between naturalism and positivism, which is referred to as 'normative positivism'. The theory presented has, in turn, consequences for political practice. If law can be seen as community morality rather than as merely the morality of officials, then everyone has a stake in the moral content of law and there may be good moral reasons for disobeying official laws. Civil disobedience is the citizen's ultimate resort against the official morality that has appropriated to itself the eulogistic name of 'law'. That law may be seen as community morality also calls into question some ruling paradigms as to the nature of morality but, if the claim can be sustained, then the legal system may be seen as applied moral philosophy in action.     

试论心理疾病的逆反性规律

心理疾病的逆反性规律是笔者创立的"不无自我"心理疗法的三项发现之一,逆反性规律是指事物具有朝着相反方向转化的规律,客观世界的逆反性规律,是因为世界的圆周运动,人类认识论上的逆反性规律,是因为主客体的对立.逆反性规律<周易>称为"逆",<老子>称为"反",中医称为"重阴必阳,重阳必阴",唯物辩证法称为"物极必反",是一切事物运动变化的普遍规律,也是中医和辩证法的思想精髓.心理疾病的逆反性规律主要体现在四个方面:认知心理障碍的逆反性,应对心理事件的逆反性,排解心理障碍的逆反性,消除症状的逆反性.     

Parental choice: What parents want in a son‐in‐law and a daughter‐in‐law across 67 pre‐industrial societies

Parents are influential over mate choice, and in most human societies they choose spouses for their offspring according to their own preferences. However, surprising little is known about the qualities which make a woman desirable as a daughter‐in‐law and a man desirable as a son‐in‐law. Using evidence from 67 societies such traits are identified and three hypotheses are tested: first, the hypothesis is tested that parents desire in an in‐law qualities which are beneficial to them and their kin. Second, it is hypothesized that such preferences are contingent upon the sex of the in‐law, as traits are weighted differently in a daughter‐in‐law and in a son‐in‐law. The third hypothesis tested is that parental preferences vary according to the subsistence type of a given society, as traits are valued differently in agropastoral societies and foraging societies. The evidence presented here provides support for all three hypotheses.     

Revisiting the problem of Jewish bioethics: the case of terminal care

This paper examines the main Jewish sources relevant to end-of-life ethics, two Talmudic stories, the early modern code of law (Shulhan Aruch), and contemporary Halakhaic (religious law) responsa. Some Orthodox rabbis object to the use of artificial life support that prolongs the life of a dying patient and permit its active discontinuation when the patient is suffering. Other rabbis believe that every medical measure must be taken in order to prolong life. The context of the discussion is the most recent release of the "Steinberg Report," which proposes a law regulating end-of-life issues in Israel. It is argued that the Orthodox rabbis base their views on a strongly positivist concept of religious law. The rabbis deliberate the law as a manifestation of the will of God and try to stretch the law as much as possible in order to benefit the patient, even when it is good for the patient to die. Direct and active actions that kill are prohibited; certain forms of passive euthanasia and contrivances that terminate life support without needing direct human action are accepted.     

Philosophy and 'The Life of the Law'

abstract   Focusing on the criminal law, I discuss three ways in which analytical philosophers might contribute to the development or health of the law (and of legal theory). The first is as humble under-labourers, who seek only to clarify legal rules and doctrines, but not to criticise them. This modest conception of the role of philosophy, however, proves to be untenable: clarification must become rational reconstruction — an attempt to make rational sense of the law; and rational reconstruction must involve at least an internal critique, which appraises the law in terms of ends, values or principles that the reconstruction discovers within the law. Such an internal critique must then also point beyond itself, to an external critique that appraises law in terms of the broader and deeper political and moral values by which states should be structured; the paper ends by noting some of the problems that such an external critique faces, and some of the problems that philosophers must face in trying to engage with the world of public policy .     

《自然法论文集》

这里,洛克讨论了两个主题:是否有自然法?如何认识自然法?经验向人类表明,如果没有自然法,则无良心、善恶之分,甚至不会有人类社会的存在。但是,如果的确有自然法,又何以并非人人受其约束?这表明自然法绝非人人知晓的天赋观念。显然也不可能经由传统、教育和普遍同意来获得自然法的知识,因为传统、权威学说千差万别。所以,在洛克看来,人唯有依凭其本性,即感觉经验与理性这两种天赋能力的共同指引获得自然法的知识,它之普遍性寓于共同的人性中,即寓于洛克所认为的人之共有的感觉经验与理性领悟中。而对如何认识自然法的论述也初步表达了其经验知识论的思想。     

"实践"的内在张力与话语转换契机的开启--当代马克思主义法律理论研究新探

当代马克思主义法律理论的研究面临着从批判性导向向建设性导向的话语转换的需要。而传统马克思主义法律理论对法律规范意义的一贯抛弃态度,是实现话语转换的困难所在。本文通过回溯马克思的实践思想,发现否弃法律的规范意义并非马克思思想的固有逻辑。而籍由马克思实践思想中所蕴涵着的实践的内在张力性框架,可以把法律的规范意义容纳进来,并在此基础上开启出马克思主义法律理论研究谋求自身内部话语转换的可能和契机。     

On Common Ground: Jost's (1897) law of forgetting and Ribot's (1881) law of retrograde amnesia

T. Ribot's (1881) law of retrograde amnesia states that brain damage impairs recently formed memories to a greater extent than older memories, which is generally taken to imply that memories need time to consolidate. A. Jost's (1897) law of forgetting states that if 2 memories are of the same strength but different ages, the older will decay more slowly than the younger. The main theoretical implication of this venerable law has never been worked out, but it may be the same as that implied by Ribot's law. A consolidation interpretation of Jost's law implies an interference theory of forgetting that is altogether different from the cue-overload view that has dominated thinking in the field of psychology for decades.     

What goes into a Paradigm? Some reflections on gender‐issue ‘differences’ between Sunni law schools,and the problematic of their historical attribution

Traditional Islamic law developed within a number of paradigmatic blueprints that were later ascribed to the ‘founders’ of ‘law schools’. This law was neither code‐driven ‘civil law’ in the sense of the Napoleonic code, nor was it ‘common law’ in the English and American sense. Speaking mainly in the language of traditions, medieval scholars formulated legal rules whose admissibility depended on communal consensus regarding their validity. Many of the rules remained imbedded in ‘examples’, Hadith‐reported case studies, and/or qur'anic exegesis, while the underlying principles formed part of the developing legal tradition. That they were not codified provided the latter with an inherent flexibility, enabling judges and jurisconsults not just to apply, but to develop the law. The following article is a study of a legal concept, tahlil marriage, and the ways in which the four extant Sunni law schools have dealt with this notion, including the development of legal categories that were brought to, and derived from, the concept in question.     

Theorising the Rainbow? The Puzzle of the Public-private Divide

Two influential approaches to conceptualising the relationship between public and private law have suggested that the distinction between them should be abandoned. The first, as exemplified by Oliver, suggests that the distinction should be abandoned in favour of fusion based on the notion of commonality. The second, as exemplified by Teubner, rejects fusion, arguing for the replacement of the distinction with a concept capturing the multi-dimensional complexity of law in multiple social contexts: `polycontexturality'. This article focuses primarily on exploring conceptual puzzles presented by Oliver's `commonality thesis', and argues for a reconceptualisation of the relationship between public and private law as multi-layered. Monolithic and rigidly binary concepts alike should be replaced by a complex set of relationships – a position broadly supportive of Teubner's. However, it is argued that the relationships between public and private law are to be seen as existing on a spectrum, or even on an overarching meta-spectrum, in which the existence of distinctive `archetypal conceptual paradigms' influence as `meta-spectrum extremities'. This presents a limited caveat to Teubner's thesis. I suggest that explicit theoretical attention to both the implications of polycontexturality and the existence of the archetypal conceptual paradigms as meta-spectrum extremities might avoid occluding important distinctions and nuances within a fusion that tends illegitimately to subsume private law within a public law paradigm. Such an analysis, I argue, could enhance the coherence of the law in complex, multi-dimensional cases at the troubled borderline between public and private law. This revised version was published online in August 2006 with corrections to the Cover Date.