无知、自由与法律

哈耶克从对无知的顿悟中洞见了自由特别是个人自由对于个人和社会发展与进步的必要性。而法律则构成了实现和保证这种自由的充要条件。因此,法律与自由具有同等价值。哈耶克对自由与法治的价值的注重和执着,既推动了人类认识的发展与进步,同时也给那些正在实践或追求自由与法治的社会留下警省和启示。     

Liberty and equality. A critical response to the debate between James P. Sterba and Jan Narveson

Abstract

This article examines the libertarian arguments of Jan Narveson and James P. Sterba regarding the compatibility of liberty and equality. It then posits that their arguments fail in solving tensions between liberty and equality, because all fundamental rights cannot be derived from liberty. A coherent scheme of human rights is only possible if human dignity is used to balance the conflicting interests of liberty and equality. It then proceeds to make some suggestions on how human dignity as core value might help to solve tensions between equality and liberty.     

For One Concept of Liberty

ABSTRACT  The essay enquires whether a negative concept of liberty suffices for political and legal discourse. A contemporary argument alleging the inviability of a negative concept of liberty is examined and exposed as wanting, while street-smart claims on behalf of a 'positive' concept of liberty are shown to be deployments of the negative concept, misdescribed. The truth that lack of money is lack of freedom in societies with a money economy and coercively enforced property rights is established with supporting examples, and its implications for need satisfaction assessed. Judgment is concluded that the negative concept of liberty is both the only viable concept of liberty and demonstrably adequate for morally sensitive engagement with political life.     

Rethinking deprivations of liberty: possible contributions from therapeutic and ecological jurisprudence

In place of the police and parens patriae powers, this article proposes three distinct justifactory models for government-sponsored deprivations of liberty. The punishment model authorizes deprivation of liberty as a sanction for blameworthy behavior. The prevention model authorizes deprivation of liberty to prevent harm, either through deterrence or restraint. The protection model authorizes liberty deprivation to ensure autonomous decisionmaking. The article compares these models to the purposes traditionally advanced as justification for punishment, and explores their strengths and weaknesses. Using therapeutic jurisprudence and ecological jurisprudence as organizing frameworks, it then describes a range of empirical issues raised by each of the models.     

马克思每个人自由而全面发展思想的四个维度

马克思每个人自由而全面发展的理论内蕴着四个维度的内涵：人类的历史发展导向每个人自由而全面发展;个人自由发展的普遍性和全面性;从虚幻的集体到真实的集体的发展;建立在“共同占有的基础上”“重新建立个人所有制”的基础上。     

密尔自由观的伦理辨析

约翰·密尔从个人与社会关系的独特伦理视角对自由主义进行了新的阐释,他认为自由就是由社会合法地对个体行施的那种权力的本性和限制.密尔坚持个人自由,主张张扬人的个性,提出自由要以社会的进步和人类整体的幸福为其价值目标.尤其是密尔对自由的伦理道德诉求、对个性自由的伦理价值分析、给自由以限度、给自由以功利主义解释等伦理主张和理论建构,不仅极大地丰富和完善了自由主义理论,推动了自由主义理论与实践的发展,而且还具有重要的现代价值.     

The moral limits of Feinberg's liberalism

This essay explores Joel Feinberg's conception of liberalism and the moral limits of the criminal law. Feinberg identifies liberty with the absence of law. He defends a strong liberal presumption against law, except where it is necessary to prevent wrongful harm or offense to others. Drawing on Rawlsian, Marxian, and feminist standpoints, I argue that there are injuries to individual liberty rooted not in law, but in civil society. Against Feinberg, I defend a richer account of liberalism and liberty, linking them to human dignity, and a more positive role for law. Feinberg justifies liberty as an instrumental welfare‐interest, valuable in virtue of the way it serves the individual's ulterior goals. Drawing on the example of racism and civil rights, I argue that the value of equal liberty stems from its social role in constituting persons’ sense of their own worth and dignity. Against Feinberg, I claim that liberty's value is grounded in a shared historical ideal of personhood, not in the individual's goals or desires. Feinberg also links liberalism with an extreme anti‐paternalist position, on which individuals should be at liberty to alienate their very own right of personal autonomy. Drawing on the examples of slavery and drug addiction, I argue against this liberty, and the conception of liberalism and paternalism in Feinberg which leads to it. A liberalism founded upon an ideal of human dignity allows, even requires, a use of law to prevent persons from destroying the very conditions of their own autonomy and dignity.     

Social Liberty and the Physically Disabled

ABSTRACT Liberal political philosophy has little of interest to say about the social liberty of the physically disabled. It accepts that the physically disabled and the able-bodied are equally at liberty, even though the former can do far less than the latter; and it concludes that there are no interesting political statements we can make about their situation. In this essay, I assume that the physically disabled are unfree, not merely unable, to use public facilities which do not take their disability into account, thereby excluding them. I criticise liberal theories of liberty by exposing and questioning the assumptions which entail the liberal theorist's rejecting this claim. I conclude that there is a form of negative liberty which does enable the liberal theorist to make political statements about the freedom of the disabled [1].     

Critical notice of On the people's terms: a Republican theory and model of democracy,by Philip Pettit,Cambridge University Press, 2012, xii+333pp.

This paper is a critical notice of Philip Pettit's On the People's Terms: A Republican Theory and Model of Democracy. Pettit argues that only Republicanism can respond appropriately to the ‘evil of subjection to another's will – particularly in important areas of personal choice’ because its ideal of liberty – freedom as non-domination – both captures better than liberalism our commitment to individual liberty and explains better our commitment to the legitimacy of democratic decision-making than standard democrat accounts. If this argument succeeds, it demonstrates that there is no real tension between the liberal thought that justice provides a standard for evaluating public decisions independent of the fact that they are taken democratically and the democratic thought that the fact that a decision is democratic suffices to make it legitimate. I argue, however, that Pettit finds himself caught between two contradictory positions: a version of Isaiah Berlin's negative concept of liberty and a positive liberty account of democracy. And I show that his attempt to resolve the tension fails because it requires him to embrace the positive liberty account he is committed to rejecting.     

For a Concept of Negative Liberty—but which Conception?

ABSTRACT The present essay concurs with R. Beehler's recent contribution to this journal ('For One Concept of Liberty', (1) 1991) in deeming the concept of negative liberty fully adequate for political discourse. Thus, section 1 indicates a plausible line of reasoning by which the negative concept can be defended against some standard objections. However, sections 2 and 3 argue that, nevertheless, Beehler's traditional conception of negative liberty is inadequate. It does not account correctly for various paradigmatic cases of 'unfreedom', for instance, the curtailment of the liberty of the poor by their lack of economic resources. More precisely, Beehler's account will in many such cases fail to identify the correct constraining agents. The present essay suggests how Beehler's aim may be achieved on the basis of a different conception of negative liberty: the 'responsibility view'.     

The “ambiguous liberties” of the commodified female body

This paper takes issue with the concept of liberty advocated for by contemporary legal feminists. Freedom, for such thinkers, represents bodily freedom, and freedom from unnecessary constraint upon the activities of female bodies. This paper argues that in a patriarchal capitalist society, such notions of female liberty are problematic. Firstly, such notions fail to recognise that freedom of choice is not equivalent to welfare or well-being. Secondly, legal feminist notions of liberty reinforce a form of bodily self-objectification. Through analysis of the function of the beauty myth in consumerist society, this article connects this self-objectifiying tendency in legal feminism to the commodification of the female body in capitalist society.     

From Experience to Relation: Laszlo and Inayatullah,Two Futurists Compared

Humans have two futures: either liberty or uncertainty. In liberty, humans can forecast a vision of the future. However, in uncertainty, humans must forecast multiple futures. This article compares Ervin Laszlo's theory of the liberty future with Sohail Inayatullah's theory of the uncertainty future. Additionally, this article analyzes these two futurists through the lens of Martin Buber, and I argue that the future represents reality not to the “I” of the combination I–It but to the “I” of Buber's preferred combination of I–Thou.     

Everything is What it is,and Not Another Thing: Knowledge and Freedom in Isaiah Berlin's Political Thought

Although Isaiah Berlin's critique of positive liberty has achieved canonical status, its place within his wider political philosophy remains obscure. However, the re-publication of one of his most important philosophical essays, From Hope and Fear Set Free, as part of a new edition of Four Essays on Liberty, simply entitled Liberty, has opened the door to a re-evaluation of Berlin's political project.

At the heart of Berlin's argument, which gains its fullest expression in From Hope and Fear Set Free, stands his contention that positive liberty, in its incarnation as self-realisation, conflates liberty with knowledge, which leads to the distortion of our phenomenologically inescapable structure of experience. This transgression against the conceptual framework in terms of which we think, Berlin argues, played its desolate part in linking the ‘totalitarian temptation’ latent in liberty as self-realisation with the totalitarian politics of the mid-twentieth century.     

Community,liberty and the practice of teaching

Does the cultivation of liberty undermine communities of practice? The answer depends significantly on what is meant by the cultivation of liberty and on what is meant by a community of practice. On the question of community, the work of Rawls and Sandel serves as a starting point. I examine three conceptions — the instrumental, the sentimental and the constitutive — and attempt to illustrate them with examples of communities of practice. I argue that Sandel's criterion for distinguishing between the sentimental and constitutive conceptions of community does not do the work required of it.On the question of liberty undermining community, I argue that if liberty is taken as license then it is a threat both to communities and to practices, whereas if it is taken as independence then it threatens neither. Two conceptions of independence can be distinguished. One, which is central to liberal political theory, does not presuppose an account of the good; the other, which I argue is central to the flourishing of a community of practice, does. It presupposes that account of the good which is implicit in the end or telos of the practice concerned.     

Community,liberty and the practice of teaching

Does the cultivation of liberty undermine communities of practice? The answer depends significantly on what is meant by the cultivation of liberty and on what is meant by a community of practice. On the question of community, the work of Rawls and Sandel serves as a starting point. I examine three conceptions — the instrumental, the sentimental and the constitutive — and attempt to illustrate them with examples of communities of practice. I argue that Sandel's criterion for distinguishing between the sentimental and constitutive conceptions of community does not do the work required of it. On the question of liberty undermining community, I argue that if liberty is taken as license then it is a threat both to communities and to practices, whereas if it is taken as independence then it threatens neither. Two conceptions of independence can be distinguished. One, which is central to liberal political theory, does not presuppose an account of the good; the other, which I argue is central to the flourishing of a community of practice, does. It presupposes that account of the good which is implicit in the end or telos of the practice concerned.     

Shaftesbury on Liberty and Self-Mastery

ABSTRACT

The aim of this paper is to show that Shaftesbury’s thinking about liberty is best understood in terms of self-mastery. To examine his understanding of liberty, I turn to a painting that he commissioned on the ancient theme of the choice of Hercules and the notes that he prepared for the artist. Questions of human choice are also present in the so-called story of an amour, which addresses the difficulties of controlling human passions. Jaffro distinguishes three notions of self-control that are present in the story of an amour. Although I agree with many aspects of Jaffro’s interpretation, I question his conclusion that self-control in the Stoic sense is best reserved for ‘moral heroes.’ I propose an alternative developmental interpretation, according to which all human beings are on an intellectual journey aimed at personal and moral improvement. My interpretation takes seriously that for Shaftesbury philosophy is meant to be practical and help improve our lives. I end by arguing that rather than trying to situate Shaftesbury’s concept of liberty within debates among compatibilists and incompatibilists it is more promising to understand it in terms of self-mastery and thus regard it as a version of positive liberty.     

Revising Republican Liberty: What is the Difference Between a Disinterested Gentle Giant and a Deterred Criminal?

This paper assesses the most well thought out contemporary conception of republican liberty put forward by Philip Pettit and Quentin Skinner. I demonstrate that it is incoherent: at least insofar as it seeks to pick out a form of unfreedom not captured by the negative conception of liberty. This incoherence arises because Pettit and Skinner cannot both hold that republican unfreedom is defined by one agent’s mere capacity to interfere arbitrarily with another agent and, at the same time, claim that republican freedom can be promoted by deterrence mechanisms. My contribution to contemporary republican theory is to suggest that a coherent republican conception can be achieved, however, through an important revision. This is to replace Pettit and Skinner’s antonym of republican liberty—the power to interfere arbitrarily—with a higher order power—the power to determine arbitrarily rules with respect to interference. This revised conception does pick out a genuinely distinct extension of unfreedom from the negative liberty conception. I believe it also reflects an important intuitive sense in which we may understand ourselves to be unfree, that is, to live under the rule of another.     

Institutions of Conscience: Politics and Principle in a World of Religious Pluralism

This article considers the difficult question of whether there are any reasons for theocratic religious devotees to affirm liberalism and liberal institutions. Swaine argues not only that there are reasons for theocrats to affirm liberalism, but that theocrats are committed rationally to three normative principles of liberty of conscience, as well. Swaine subsequently discusses three institutional and strategic implications of his arguments. First, he outlines an option of semisovereignty for theocratic communities in liberal democracies, and explains why an appropriate valuation of liberty of conscience may justify a standard of that kind. Second, he addresses the question of permissible government aid for religion and symbolic endorsement of religious groups. Third, Swaine considers innovations and new approaches that could be employed internationally to better display liberal government's affirmation of religiosity, to promote liberty of conscience, and to help improve relations between liberal and theocratic parties around the globe.     

John Stuart Mill and the Conflicts of Equality

John Stuart Mill commented on the relationship between equality and liberty in general terms, and he also discussed the relationships between equality and four more concrete social goals: equality vs. diversity and individual spontaneity, equality vs. freedom of trade and entrepreneurial activity, equality vs. economic incentives for workpeople, and equality vs. welfare. In his more general statements he wrote off potential conflicts between equality and liberty, claiming that only those liberties that can be enjoyed by all are real liberties—or at least they are the only ones worth defending. However, in several of his more concrete discussions he gave higher priority to various liberty-related goals than to equality. This seeming contradiction can be resolved if we assume that he distinguished between valuing a liberty per se and valuing it as a means to achieve something else.