Vol. 282 域外法学|Ratio Juris Volume 30 Issue 4
《法理》是由Blackwell出版社与Bologna大学联合出版的法理学与法哲学国际期刊。由Silvia Vida协助Enrico Pattaro和Carla Faralli进行编辑。
Blackwell出版社网站主页上关于《法理》的介绍如下：
《法理》是法哲学与一般法理学的一流国际期刊。它提供了关于法与法律问题的哲学观点的国际与跨文化的交流论坛。《法理》向来自所有背景与传统的法学、哲学、政治、文化与语言学学者开放。
《法理》包括这样一些经典主题：法的性质；法与道德；正义；正当性与自然法；法与理性；规范逻辑；人工智能与法；法与语言；法律义务；权利有效性与法的合法性；法治；法认识论；规则与原则；规则与行动；法律推理；解释；道义逻辑与法的专业体系。
Ratio Juris is a leading internationaljournal of philosophy of law and general jurisprudence. It provides a trulyinternational and trans-cultural forum for the communication of philosophicalideas about law and legal questions. Ratio Juris is open to scholars from allbackgrounds and traditions, legal, philosophical, political, cultural andlinguistic.
Ratio Juris covers classical topics suchas: the nature of law; law and morality; justice; rightness and natural law;law and reason; the logic of norms; artificial intelligence and law; law andlanguage; legal obligation; rights validity and the legitimacy of law; the ruleof law; legal epistemology; rules and principles; rules and acts; legalreasoning; interpretation; deontic logic and expert systems in law.
来源：www.jurisdynamics.net/files/documents/OtherRatioJuris.html
创刊编辑
Enrico Pattaro
总编辑
Carla Faralli, University of Bologna, Italy
Phone: +39 51 277208
Fax: +39 51 260782
Email: carla.faralli@unibo.it
助理编辑
Chiara Valentini
Phone: 00 39 051 277261
Email: rjuris.cirsfid@unibo.it
顾问委员会
Hans Albert (University of Mannheim)
Martha Nussbaum (University of Chicago)
Enrico Pattaro (University of Bologna)
John Searle (University of California,Berkeley)
编辑委员会
Aulis Aarnio (University of Helsinki)
Robert Alexy (University of Kiel)
Alexander Bröstl (University of Kosice)
Eugenio Bulygin (University of BuenosAires)
Guido Calabresi (Yale University)
Elías Díaz (Autonomous University ofMadrid)
Ralf Dreier (University of Göttingen)
Vincenzo Ferrari (University of Milan)
John M. Finnis (University of Oxford)
George P. Fletcher (Columbia University)
Lawrence M. Friedman (Stanford University)
Kent Greenawalt (Columbia University)
Susan Haack (University of Miami)
Leslie C. Holborow (Victoria University ofWellington, New Zealand)
Hermann Klenner(Berlin)
Werner Krawietz(University of Münster)
Martin Krygier (University of New SouthWales, Australia)
Frank I.Michelman (Harvard University)
Dennis Patterson (Rutgers University,Camden)
Stanley L. Paulson (Washington Universityin St. Louis)
Gerald Postema (University of NorthCarolina)
Joseph Raz (University of Oxford)
Giovanni Sartor (University of Bologna)
Augustín Squella (University of Valparaiso)
Robert S. Summers (Cornell University)
Michel Troper (University of Paris)
Csaba Varga (Hungarian Academy of Science)
Jeremy Waldron (Columbia University)
Ernest J. Weinrib (University of Toronto)
Mitsukuni Yasaki (Setjo University of Tokyo)
1
承诺与一般合同法理论的问题
The Promise and Problems of Universal,General Theories of Contract Law
There are a growing number of generaltheories of contract law and of other doctrinal areas. These theories arevastly ambitious in their aims. This article explores the nature of theseclaims, and the motivations for offering such theories, while considering thechallenges to success. It is in the nature of theorizing to seek generalcategories, including doctrinal categories, and to try to discover insightsthat hold across those categories. However, differences both within a doctrinalarea and across legal systems undermine the case for universal and generaltheories. Also, unjustifiably general theories may distract us from developingproperly contextual legal rules, and might even have the unintended effect oflegitimating unjust rules.
2
法理学不是法哲学的进一步理由
More Reasons Why Jurisprudence Is Not LegalPhilosophy
It is generally assumed, without argument,that legal theory, legal philosophy, philosophy of law, and jurisprudence allmean the same thing. This paper rejects that assumption, and in particular theassumption that jurisprudence is the same thing as legal philosophy. Thisassumption has recently been challenged by Roger Cotterrell in his article “Why Jurisprudence Is Not LegalPhilosophy,” and I seekto build on his arguments by adding insights found in the work of Stanley Fish.
3
阿伦特的恐惧：强势法院
The Arendtian Dread: Courts with Power
Hannah Arendt was fearful not only of apopulist President speaking in the name of the people and unbound by legality.She was also concerned that popular support could be harnessed by thoseresponsible for limiting it. In other words, she was fearful of the AmericanSupreme Court relying on popular support. This is the meaning of her obscuredepiction of the American Supreme Court as “the true seat of authority in the American Republic” but unfit to power. I argue thatArendt’scharacterization of authority as requiring “neither coercion nor persuasion” means that the Court’s source of legitimacy is expertise rather than public support. Yetthe current dominant understanding among American Justices as well as scholarsis that public support is the source of the Court’s authority. In Arendt’s mind, such an understanding means that the Court has become theseat of power. The corruption of the Court’s authority and constitutional law as a language of expertisecapable of resisting public opinion will inevitably follow.
4
公民良知、有选择的良知反抗行为和缺乏选择
Civic Conscience, Selective ConscientiousObjection and Lack of Choice
Most democratic states tolerate, to variousextents, conscientious objection. The same states tend not to tolerate acts ofcivil disobedience and what they perceive as selective conscientious objection.In this paper it is claimed that the dichotomy between civil disobedience andconscientious objection is often misguided; that the existence of a “civic conscience” makes it impossible todifferentiate between conscientious objection and civil disobedience; and thatthere is no such thing as “selective” conscientious objection—or that classifying an objection as “selective” has no significant moral or practical implications. These claimsare supported by a preliminary, more general argument according to whichconscientious objection is and should be tolerated because the objector lacksthe ability to choose his conscience and to decide whether to act upon it. Thelack-of-choice argument, it is claimed, applies equally to all types ofconscientious objection, including those that are mistakenly called “selective” objection. It also applies to onetype of civil disobedience. As a result, if a state is willing to toleratenon-selective conscientious objection, it may and at times must also tolerateselective conscientious objection and (one type of) civil disobedience and to asimilar degree (all other things being equal).
5
刑法中的意图：来自非观察性认识的挑战
Intention in Criminal Law: The Challengefrom Non-Observational Knowledge
Intention is at the heart of criminal law.If it is not the mens rea requirement found most often in offences, it is stillthe standard against which other grades of fault tend relatively to be judged.It has generated much controversy, as the crucial question, “Did the defendant intend X?” is resistant to clear answers.This paper argues that intention-questions are difficult because intention isnot the thing law takes it to be: Importantly, contrary to law’s assumptions, it is neither astate of mind nor is it connected in an exclusive manner to the reasons forwhich we act.
6
原则的句法：作为规则与原则之逻辑差异的类属性
The Syntax of Principles: Genericity as aLogical Distinction between Rules and Principles
Much has been said about the logicaldifference between rules and principles, yet few authors have focused on thedistinct logical connectives linking the normative conditions of both norms. Iintend to demonstrate that principles, unlike rules, are norms whoseantecedents are linguistically formulated in a generic fashion, and thuslogically described as inclusive disjunctions. This core feature incorporatesthe relevance criteria of normative antecedents into the world of principlesand also explains their aptitude to conflict with opposing norms, namely thattheir consequents are fulfilled to varying extents more frequently than thoseof rules. I conclude that the property of genericity should be predicated tothe norm antecedent of principles, more precisely to the hypothetical action.This is of paramount importance to explain, in terms of logical implication andexclusion, the expansibility of competing principles, in contrast with theexclusive character of conflicting rules.
本期1-3为书评The Tapestry of Reason: AnInquiry into the Nature of Coherence and Its Role in Legal Argument，4为作者Amalia Amaya的回应。5单独成篇，对安德鲁·马默《告别概念分析》一文提出批评。
In recent years coherence theories oflaw and adjudication have been extremely influential in legal scholarship.These theories significantly advance the case for coherentism in law.Nonetheless, there remain a number of problems in the coherence theory in law. Thisambitious new work makes the first concerted attempt to develop acoherence-based theory of legal reasoning, and in so doing addresses, or atleast mitigates these problems. The book is organized in three parts. Thefirst part provides a critical analysis of the main coherentist approachesto both normative and factual reasoning in law. The second part investigatesthe coherence theory in a number of fields that are relevant to law: coherencetheories of epistemic justification, coherentist approaches to belief revisionand theory-choice in science, coherence theories of practical and moralreasoning and coherence-based approaches to discourse interpretation. Takingthis interdisciplinary analysis as a starting point, the third partdevelops a coherence-based model of legal reasoning. While this model buildsupon the standard theory of legal reasoning, it also leads to rethinking someof the basic assumptions that characterize this theory, and suggests some linesalong which it may be further developed. Thus, ultimately, the book not onlyimproves upon the current state of coherence theory in law, but alsocontributes to the larger debate about how to articulate a theory of legalreasoning that results in better decision-making.
1
融贯性在法律推理理论中的功能与价值
The Role and Value of Coherence in Theoriesof Legal Reasoning
2
刺猬法律推理
Legal Reasoning for Hedgehogs
3
《理由的织锦》：普遍性、特殊性和法哲学
The Tapestry of Reason: Generality, Specificity and Legal Philosophy
4
对批评的回应
Replies to Critics
5
堪培拉式分析与法律：对安德鲁·马默《告别概念分析》的批评
Canberra-Style Analysis and Law: A Critiqueof Andrei Marmor's Farewell to Conceptual Analysis
译者附
告别（法学）概念分析
Farewell to Conceptual Analysis (inJurisprudence)
I have two main purposes in this essay: First,to show that conceptual analysis is not nearly as central to legal philosophyas typically assumed. The main methodological thrust of analyticaljurisprudence, and in particular of legal positivism, is reductionism, not conceptualanalysis. Consequently, the main objections to legal positivism are best seenas arguing against the possibility of reduction. Second, I aim to show thatthe interpretivist challenges to analytical jurisprudence bark up the wrongtree in this respect, and actually fail to engage with the methodologicalstance they aim to replace. Along the way I offer a partial defense ofreductionism and the limited essentialism that comes with it.
本期由中国政法大学2015级法学理论专业硕士研究生刘雪利、2016级法学理论专业硕士研究生陈皓翔翻译
Volume 30 Issue 1-3的翻译请在公众号“法学学术前沿”往期推送查阅
本文系“域外法学”系列第8期
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