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수록정보
수록범위 : 1권1호(2014)~3권1호(2016) |수록논문 수 : 18
Asian Legal Philosophy
3권1호(2016년 12월) 수록논문
최근 권호 논문
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1The Rawlsian Civil Disobedience and The Principle of Nonviolence

저자 : Hung-ju Chen

발행기관 : 한국법철학회 간행물 : Asian Legal Philosophy 3권 1호 발행 연도 : 2016 페이지 : pp. 5-31 (27 pages)

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The question of whether civil disobedience must be nonviolent occupies the central place of debate in theories and practice. In A Theory of Justice John Rawls provides significant arguments for the feature of nonviolence by conceptualizing civil disobedience as a mode of address. Rawls provides two arguments for the principle of nonviolence in civil disobedience. The first argument is the argument of speech act, which treats disobedience as a kind of speech act and makes an analogy between disobedience and a public speech. The second argument is the argument of sincerity, which takesnonviolence as a way to demonstrate disobedients` sincere attitudes to the fidelity of law. For John Rawls the reason of civil disobedience being nonviolent becomes clearer in conjunction with the idea of civil disobedience as a mode of address: Civil disobedience is a form of communication that nonviolence serves as a background condition to maintain sincere communications possible. This is the communicative function of the Rawlsian disobedience making the feature of nonviolence more robust. In this article, I re-construct Rawls`s arguments for the principle of nonviolence, explicate his theory from the perspective of speech act, and explain the meaning of communicative function of disobedience and the implications. Focusing on the communicative function of disobedience makes the Rawlsian disobedience more theoretically coherent and leads to a better understanding of forces and effects that can be generated by disobedience. While the Rawlsian disobedience is communicative, there are other possible conceptions of disobedience that can be developed as well. This article cannot give the alternative a complete articulation but only identify two other types of disobedience: expressive and resistant disobedience.

2Representation in Family

저자 : Hae Jeong Jun

발행기관 : 한국법철학회 간행물 : Asian Legal Philosophy 3권 1호 발행 연도 : 2016 페이지 : pp. 32-44 (13 pages)

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I have been struggling with gender justice in the family since 2013, when my grandmother died at the age of 105. There are over a 100 descendants including sons, grand-children, great-grandchildren, and in-laws. Despite this, not only is a male descendant in charge of the funeral arrangements but he also has the authority to make all the decisions, including funeral rites. Even though male representation in the family was legally struck down in Korea when the Hoju system of family law was abolished in 2002, the male yet remains a representative of the family. Where does this gap between the legal system and real life come from? I will attempt to find the answer based on the feminist legal theory.

3Ways of Naturalizing Jurisprudence

저자 : Gunoo Kim

발행기관 : 한국법철학회 간행물 : Asian Legal Philosophy 3권 1호 발행 연도 : 2016 페이지 : pp. 45-59 (15 pages)

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Naturalism in jurisprudence`, for anyone acquainted with the doctrine, would typically remind her of Brian Leiter`s naturalized jurisprudence―the very naturalized jurisprudence he characteristically has proposed and defended since 1990s. On this viewpoint, he claimed that law and jurisprudence should be pursued by means of the empirical methods that the current best sciences have successfully drawn upon. Leiter`s leading endeavors in this approach have shed light on the role and significance of the scientific methodologies in the analysis and explanation of law and adjudication. In particular, he has drawn our attention to philosophical naturalism, philosophical pragmatism and American Legal Realism as major intellectual sources for his naturalized jurisprudence. In short, his naturalized jurisprudence is characterized by a program of jurisprudence that honestly purports to rely upon the epistemology of law the current best science teaches us. As a result, he tends to recommend a methodological rather than substantive naturalization as a more promising type of naturalization. Still, I argue that there remains room for exploring broader, more comprehensive manners of naturalizing jurisprudence than Leiter has advocated. These manners can best be illustrated by employing the existing and emerging empirical methodologies to advance the varying programs of social science along the popular slogan of the so-called New Legal Realism, or by carrying out the task of naturalization overall―in not only methodological but also substantive dimension.

4The Meaning of Being Constitutional

저자 : Kuk-woon Lee

발행기관 : 한국법철학회 간행물 : Asian Legal Philosophy 3권 1호 발행 연도 : 2016 페이지 : pp. 60-81 (22 pages)

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This is an effort to think about a foundational concept of constitutionalism. In order to know the meaning of constitution, we have to ask the concept of the constitutional rather than the concepts of the political, the legal, or the societal. First step for this is to figure out the phenomenological distinctiveness of human politics as thinking-politics and representationpolitics. And secondly, the author tries to show that how much necessary and inevitable but fragile and distorted the representation-politics is. From the viewpoint of the Same, representation is not thing but cheating. From the viewpoint of the Other, it is just something betraying. In this regard, the author defines constitutionalism as a political project to overcome the limit of representation-politics. Most human-beings seem to be aware of the need of representation-politics to some extent, but only some of them understand that representation-politics is fragile and distorted and should be reformed. This explains why constitutionalism comes late and later in human history. Only in some matured civilizations, where people fully understand that human politics exists in the middle of God and animals, we can find different kinds of constitutionalism no matter how they are called. In the later chapters the author focuses the uniqueness of modern constitutionalism by using a term of human self-liberty and thinks about its implication to the Korean society nowadays. In short, the meaning of being constitutional is to think the limit of representation- politics. It is a kind of on-going endeavor to keep human politics from the temptation of being fallen into animal politics. So, in order to be constitutional, we need to be outside of current representation-politics both in theory and practice for a while. In this sense, it could be called to try a kind of meta-thinking of the representation-politics.

5Poetry and Jurisprudence in the Chinese Tradition

저자 : 이사 ( Sha Li )

발행기관 : 한국법철학회 간행물 : Asian Legal Philosophy 3권 1호 발행 연도 : 2016 페이지 : pp. 82-117 (36 pages)

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Poetry, especially The Book of Poetry , played a significant jurisprudential role in the traditional Chinese `Li (禮)-Fa (法)` order in which Li (禮) exerted a wider, long-lasting influence due to the impact of Confucianism. Poetry illuminated the essential spirit of Li (禮)-Fa (法) by conveying people`s sentiments, values, and perceptions of life, human relationships and the order of universe, on which the Li (禮)-Fa (法) rules were supposed to be grounded. By chanting people`s genial affections in interactions, poetry also became an important means of education of manners that promoted the comprehension and practice of Li (禮) and Fa (法). In some occasions, it served directly as the component of Li (禮) and Fa (法). Poetry also generated protest against injustice in the Li (禮)-Fa (法) order which became a special education of justice for the political and legal officials. Poetry made a great impact in thecultivation of the legal profession as well, which facilitated the poetic justice in courtrooms that imbued adjudication with sympathy and a consciousness of equity. The insistence on grounding external rules on people`s feelings, values and customs, the emphasis on fostering social harmony with literary and aesthetic mediums, and the mode of adjudication with humanistic spirits, are ancient wisdom that provides positive reference to the modern age.

6Intercultural Approach for the Asia Pacific ―Human Rights Stories―

저자 : Akihiko Morita

발행기관 : 한국법철학회 간행물 : Asian Legal Philosophy 3권 1호 발행 연도 : 2016 페이지 : pp. 118-131 (14 pages)

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As the contemporary world has become increasingly interconnected and the society in each state has become increasingly multicultural, multilingual and multi-faith-oriented, the myth of nation state, political homogeneity of the population, has declined. Asia Pacific, particularly the East Asia seems to lag behind this global trend mainly due to the legacy of the San Francisco Peace Treaty. The San Francisco System, created in the midst of the Korean War with emerging Communist China characterized as a bilateral-networks-based asymmetrical framework with US dominance, has eventually prevented China, Korea and Japan from developing the regional network. However, in the contemporary Asia Pacific, after half a century of relative stability under U.S. domination, the geopolitical order is undergoing a fundamental transformation process due to a gradually declining U.S. presence, an emerging China and South Korea, stagnant Japan and unpredictable North Korea. The San Francisco System does not match the contemporary geopolitical situation in the Asia Pacific and we need a new regional political order. However, as Charles Taylor reiterates, we need not only specific policies but also the articulated stories of what we are doing for transforming the San Francisco System. In my account, we need to develop a set of new stories to transform the regional political order in the Asia Pacific, based on the universal norms such as human rights and rule of law. Hence, the underlying new stories must be grounded in the common stories of human rights and the rule of law in the region. Practical projects such as developing the regional human rights protection mechanism in parallel with the joint research in exploring the human rights pioneers in the Asia Pacific and tracing the history of their interaction will contribute to making the post San Francisco System.

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성공회대학교 고려대학교 New York University
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