摘要:

Abstract.In Aristotle's account, corrective and distributive justice are not (as they are today) particular substantive ideals, but are rather the formal patterns that inhere in interactions and in the legal arrangements that regulate them. Corrective and distributive justice are the structures of ordering internal to transactions and distributions, respectively. The Aristotelian. forms of justice thus constitute the rationality immanent to the relation ships of mutually external beings. This article stresses Aristotle's formalism, contrasting it to modem instrumental conceptions of legal rationality, and defending it against Kelsen's allegations of emptiness. The article concludes with the suggestion that corrective justice, as the conceptual pattern that makes private law what it is, can be considered the formal and final cause of private law.

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1989.tb00039.x

出版商:Blackwell Publishing Ltd    

年代:1989

数据来源: WILEY

摘要:

Abstract.The modern interpretation of Smith as a retributive theorist of punishment is challenged in favour of a view of his work as containing a curious amalgam of retributive and utilitarian elements. This unsynthesised theoretical compound accounts for many of the contradictory positions assumed by him, examples of which are given in the article. At the level of “punishment” (i.e., punishment considered without a political dimension), the retributivehtilitarian dichotomy is observed in his discussions of merit and demerit (which are utilitarian in their logic) and propriety and impropriety (which are retributive). At the level of state punishment, the same dichotomy is seen in his juxtaposition of considerations of individual justice and the political ends of punishment. A final section locates Smith's “double cleft stick” theoretically in his position on the one hand in the Hobbesian materialist tradition and on the other in his historical stance half‐way between the individualism of the contractarians and the full blown utilitarianism o

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1989.tb00040.x

出版商:Blackwell Publishing Ltd    

年代:1989

数据来源: WILEY

摘要:

Abstract.The author discusses the conditions necessary to accept the one right answer theory. The argument is based on an analysis of the deep structure of the justified fractional decisions pertaining to the substantive decisional model of the judicial application of law within the statutory law system. The role of evaluative choices is needed to justify the decisions in question at least in hard cases. This makes the theory of one right answer unacceptable in a noncognitivist axiological framework.

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1989.tb00041.x

出版商:Blackwell Publishing Ltd    

年代:1989

数据来源: WILEY

摘要:

Abstract.The article attempts to show (i) the way in which the notions of “natural law” and “cosmic harmony” have been applied by Western scholars in the interpretation of traditional Chinese thinking about the role of law in society, (ii) the extent to which the Western interpretations can be supported by the Chinese sources, and (iii), more specifically, the degree to which official Chinese thought subscribed to a correlation between the occurrence of natural disasters and acts of maladministration or injustice on the part of the emperor and state. Generally it is argued that the extent to which Chinese statesmen and administrators actually believed that errors in the infliction of legal punishment or the sentencing of offenders would produce aberrant natural phenomena has been exaggerated by Western s

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1989.tb00042.x

出版商:Blackwell Publishing Ltd    

年代:1989

数据来源: WILEY

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1989.tb00043.x

出版商:Blackwell Publishing Ltd    

年代:1989

数据来源: WILEY

摘要:

This note will challenge G. A. Cohen's view of the interaction between legal systems and economic structures; such interaction raises the so‐called problem of legality, which Cohen sets out to solve in the eighth chapter ofKarl Marx's Theory of History(Cohen 1978, 216–47). In the course of this note, we shall interrogate the presumed rigor of Cohen's theory of base/superstructure relations, to which his understanding of law is central. His approach will not be simply destroyed, but will be resituated in a network of problems that can highlight a certain fissure between his aspirations and his performa

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1989.tb00044.x

出版商:Blackwell Publishing Ltd    

年代:1989

数据来源: WILEY

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1989.tb00045.x

出版商:Blackwell Publishing Ltd    

年代:1989

数据来源: WILEY

摘要:

Book reviewed in this article:Robert Alexy, A Theory of Legal Argumentation: The Theory of Rational Discourse as Theory of Legal Justification, translated by Ruth Adler and Neil MacCormickPhilip Soper, A Theory of Law

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1989.tb00046.x

出版商:Blackwell Publishing Ltd    

年代:1989

数据来源: WILEY