ABSTRACT. The renowned sociologist Zygmunt Bauman has provided us with a description of modern society as a liquid one, meaning that the traditional social, cultural, and political categorizations have given way to more fluid and changing forms of identification and interpersonal relationships. In the face of this epochal change the legal paradigm has largely remained the same, based on an idea of the law as a general and abstract concept that subsumes and regulates specific cases. A solid and static law opposes a changing and liquid society, whose grip on reality appears doubly inadequate both from a normative and functional point of view. The normative problem: what is the legitimacy of a law that considers the legal subject as a universal entity when the subject is, in fact, a living being that resists preordained categorizations? The functional problem: how can general and abstract laws regulate and manage a changing social body and a protean reality like that of liquid modernity? New regulation technologies, and in particular forms of legal AI, seem to respond, like a cybernetic deus ex machina, precisely to the challenges of liquid society. Using big data, powerful algorithms, and advanced machine learning processes, they are able to read the complexity of reality with a precision and efficiency that surpasses the wildest dreams of the law. Are we therefore witnessing the dawn of a new legal era, the birth of a law that goes beyond the law? Perhaps. But before we embark on this path, we must pause to ask some unavoidable questions. To what extent does this technology restructure the relationship between legislative, executive, and judicial power? What kind of relationship can exist, if any, between technology and democratic practice? And above all, what is the social, political, and human cost of a world in which the judgment of men is replaced by that of machines?

ABSTRACT. There has been an increasing number of works on the supposedly special relation between law and coercion in the past decade, and they are coming in a different level than these traditional law and coercion debate. It might be helpful to just list some traditional cases first. (a) Some focused on the endpoint of legal enforcement where officials could (potentially) resort to the use of force for attainment of desired results (Kelsen). (b) Others have understood the question to be much more abstract level and focused on the question of whether the law essentially and solely is a matter of coercion or not. H. L. A. Hart and J. Raz led this argument, and their answer was almost nay, though Hart would allow some room to affirm through natural justification (or ‘minimum content of natural law’). All these discussion over the philosophical, doctrinal elucidation, however, are met with a different kind of attack. F. Schauer has gone a great length to question essentialist attitude and tried to draw our attention to practical aspect of coercion, more like coercion as one of many means of social regulation. As if inspired by this, there are more papers and books on law and coercion after Schauer’s The Force of Law (2015). Interestingly, the works on law and coercion after Schauer seems to increasingly focus on law’s coercion as a matter of degree, as in how coercive a legal system actually is or how unavoidable legal coercion is (L. Miotto and T. Gkouvas, for example). A question to be asked is ‘why such a quantitative turn?’ One easy possibility is to say that more attention is given to methodological aspect of law-coercion debate. Perhaps they are retreating from philosophical discussion and thereby advancing into empirical research, which supposedly yields inter-disciplinary cooperation. Although this might partially constitute the motivation behind such quantitative turn, my suggestion in this paper is to see through the normative motivation behind it. Unlike Hart and Raz, the works on law and coercion after Schauer tend to be driven by normative motivation against prevalent coercion, rather than descriptive. Accordingly, this paper will discuss (1) the ground of the quantitative turn in law and coercion and (2) question the increasing focus on coercion by comparing wrongness of coercion and similar but distinguishable categories of manipulative effect.

ABSTRACT. The paper tackles the issue as to whether one should consider the law produced by the state (or by state-based organizations) as still being a home for all the other normative orders produced by the members within a certain national or international community. This ideal has been one of the trademarks of the nation-states’ relations to their legal systems. it began symbolically with the Peace of Westphalia in 1644, and its recognition of the state law and state-based law (i.e. positive law) as the only legitimized legal system. However, this legal ideal that underpins the growth and imposition of the political form of nation state on societies appears to have fallen into a somewhat shacking condition all around the world. On the one hand, the regulation of a certain national (or supranational or local) community traditionally is still considered as being the legitimate territory for the one and only form of law, namely the positive law produced by the state (e.g. by a national legislation or by decisions rendered by the highest courts) or by state-based organizations (e.g. by the United Nations, the various organizations produced by international treaties, or the European Union). On the other hand, the contemporary world offers countless examples of alternative normative systems that directly challenge the notion of having a unique house in which legal regulation may take place. If one assumes the truthfulness of this very brief description, it is possible to formulate the two issues that this paper will tackle. First, when viewing the matter from a community perspective, is it still possible to have “the” law, despite an environment that instead encourages or (at least) tolerates a plurality of normative systems? In other words, do we still need “the” home in which the various normative systems have to live and whose rules they must obey (or at least tolerate)? Second, if there is still a need for a legal system that occupies a dominant position in relation to the other (and therefore strictly non-legal) normative systems, which available normative system should take on this primary role of being the ultimate and decisive legal instance? Can the other normative systems, e.g. one produced in cyber-space or a religious one, assume the role played up to now by the positive law? If the legal discourse needs “the” house to serve all the normative-system guests, which materials should be used to build the house?

ABSTRACT. Since Indonesia utilizes Indonesian Penal Code which was basically a copy version of Netherland East Indie Penal Code (WvSNI/ Wetboek van Strafrecht voor Nederlandsch Indie), Indonesian people were forced to use legality principle as the sole legal source for determining criminal act. Indonesian legal scholars then realize that there is a loophole in legality principle (nullum crimen sine lege). It does not give a chance for the living law to prevail as another source of law. Therefore, in 1963, a national seminar was held, one of the recommendations is that Indonesia should have its own penal code. The criminal law commission on that seminar also recommended that the legality principle should be designed progressively in accord with Indonesian character. This is because prior to Dutch colonization, Indonesia has many laws that prevail from Aceh to Papua, the so-called Adat law which is similar to customary law and part of living law. In January 2nd of 2023, the new Indonesian Penal Code was finally established which will enter into force within three years since the issuance. The provision of living law in the new Indonesian penal code is formulated in article 2. In its 1st verse, it is written “provisions as referred to Article 1 (legality principle) does not negate the validity of the law that live in society which stipulates that someone deserves to be punished even though the act is not regulated in this Law.” However, in the explanation part, it is said that what it meant by law that live in society (living law) is Adat Law which should be regulated by the Regional Regulation (Peraturan Daerah). Therefore the explanation contains two problems: firstly it narrows and reduces the definition of living law into merely Adat Law; secondly the Adat Law should be written and provided in Regional Regulation form. If we require an Adat Law should be regulated in Regional Regulation, then why we need Article 2. The acknowledgment of living law is actually to complete the incompleteness of legality principle which mostly cannot follow the dynamical society. This research aims to fix the ambiguity of the legality of living law in the new Indonesian Penal Code by finding a better formulation according with Eugen Erhlich concept regarding living law.

ABSTRACT. The main purpose of this paper is to introduce how the social contract theory in Spinoza's political thought has been received and discussed in Japan. Japanese studies of Spinoza's philosophy have focused mainly on his discussion of Ethica, but there have been few studies of his political thought. Spinoza has two political works, Tractatus Theologico-Politicus (1670, hereafter: TTP) and Tractatus Politicus (1677, hereafter: TP). Chapter 16 of TTP appears to explain the establishment of the state by contract, using terms such as state of nature, natural rights, and transfer of rights. For this reason, Spinoza's argument was often regarded as a type of Hobbesian social contract theory. However, whether Spinoza is a social contract theorist is controversial. This is because the discussion of the social contract that appears in TTP disappears in TP. Since the work of Étienne Balibar and Antonio Negri, debate on this topic has become more active in Spinoza studies. However, in Japan, the understanding of Spinoza as a social contract theorist remains central.

In this paper, we will discuss the arguments of Takashi Kato and Toshiko Shibata as representative Japanese scholars of political thought who regard Spinoza as a social contract theorist. Kato considers Spinoza as a contract theorist on par with Hobbes and Locke from the perspective of Nature and Artifice. This interpretive perspective was influenced by leading postwar Japanese political scientists such as Masao Maruyama and Kanichi Fukuda, and it was influential in the historical context of Japan's postwar recovery. Later came the study of Spinoza's political thought by Toshiko Shibata. In contrast to Kato's Hobbesian interpretation of Spinoza, Shibata emphasizes the differences between Spinoza and Hobbes. This difference is explained by Spinoza himself in his letter. According to Spinoza, in his argument, he always preserves natural rights unimpaired. (Letter 50). Shibata emphasizes this point and finds in Spinoza a different contractual scheme from Hobbes', the synthesis of power by a multitude. I believe that Spinoza should be regarded as something other than a social contract theorist. In this paper, we will clarify the characteristics and issues of the reception of Spinoza's political thought in Japan and present the prospects for future research.

ABSTRACT. One of the most notable characteristics of public discourses in Indonesia is the centrality of Pancasila, the country’s official state ideology. Today, twenty-five years after the fall of the three-decade-long authoritarian regime of Suharto, during which Pancasila—both its “letter,” which consists simply of five general principles, as well as state-sanctioned interpretations of those principles—was heavily promoted as the “sole ideological foundation (asas tunggal)” of Indonesia, the state ideology has not ceased to be relevant within the Indonesian imaginary. In fact, recent years have seen a resurgence of the Indonesian government’s emphasis on Pancasila, as evidenced, among other things, by the establishment of research centers for “Pancasila Studies” at a number of prestigious institutions of higher education and the 2022 revision to the criminal code that made challenging Pancasila’s status an offense punishable by up to five years in prison.

Apropos Indonesia’s rather unusual preoccupation with its state ideology, the general tendency in international scholarship has been to regard the evocation of Pancasila as largely rhetorical or as a part of the pragmatic maneuver of the country’s political elites. This paper diverges from this usual approach and instead assesses the implications of Pancasila and the manner in which it has been articulated within the Indonesian scholarly discourse from the perspective of political philosophy, particularly from the perspective of agonistic or conflictual approaches in democratic theory. In so doing, this paper engages with proposals from notable scholarly advocates of Pancasila today who attempt to present the state ideology as compatible with, if not conducive for, a “pluralistic”, “inclusive”, “harmonious”, and “democratic” society.

While there are valid social and political reasons that motivate attempts to “revitalize” the state ideology in Indonesia today, this paper highlights the tensions that remain between the democratic, socially progressive aspirations of contemporary scholarly advocates of Pancasila and their theorization of Pancasila. Particular attention shall be paid to the difficulties of negotiating the purportedly traditional Indonesian values often associated with Pancasila—such as musyawarah (consultation) and mufakat (consensus)—with perspectives on democratic politics espoused by theorists such as Chantal Mouffe and Jacques Rancière. Through an examination of such tensions, this paper points toward the possibility that the pursuit of the democratic potential that Pancasila’s advocates insist the state ideology possesses may require breaking away from the kind of foundationalist thinking that has hitherto shaped discussions regarding Pancasila in Indonesia.

ABSTRACT. Watsuji is recognised as one Japan’s foremost philosophers. His work on ethics, Rinrigaku, is cosmopolitan in engaging the Western philosophical tradition, and in presupposing an international audience. Yet Watsuji’s ethical thought is largely of niche interest outside Japan, and it is critiqued on the ground that it ratifies totalitarianism, demanding individuals’ unquestioning subordination to communal demands. We offer a reading of Rinrigaku that, in attempting to trace the text’s intention, disputes these arguments. We argue that Rinrigaku makes individual autonomy central to ethical action, despite the fact that its treatment of coercion may lead one to think otherwise; that it does not reduce ethical obligations to whatever demands any given society imposes on its members; that it draws a distinction between socio-ethical orders that are genuinely ethical and those that are not; and that, in insisting on the grounding of individuals in the Absolute, it makes adequate room for individuals’ resistance to unjustifiable socio-ethical demands.

ABSTRACT. In the last few years, we have been observing in Poland the erosion of the backsliding of democracy, changes made by the ruling party in critical public institutions, and changes in the law that affected the scope of rights and freedoms of citizens, aimed at consolidating power by the ruling camp. The strategies used by the authorities toward democratic institutions concern, among others, the politicization of the prosecutor's office or the attempt to limit the independence of judges and their personal subordination. The main purpose of this paper is to show what impact this may have on lawyers' mental health in times of constitutional crisis. The article presents research results on stress and occupational burnout among Polish lawyers. 2,118 representatives of various legal professions, mainly advocates, legal advisors, prosecutors, and judges participated in the study. These results indicate a high stress level experienced by Polish lawyers, with significantly higher levels of stress and professional burnout among judges and prosecutors. Many Polish prosecutors fight for the rule of law in Poland, are unafraid to criticize what the government is doing, and do not bow to the disciplinary system introduced by the ruling camp. Most judges in Poland are worthy of their office, opposing attacks on the rule of law and democracy. However, as the results of our research show, they incur high personal costs.

ABSTRACT. The anxiety about a Leviathan government had long been ignored until Philip Hamburger initiated a renewed challenge to the administrative state. Referring to both the primordial conception of the rule of law and the textualist reading of the U.S. Constitution, Hamburger tries to reject the legitimacy of the administrative state as well as judicial deference, thereby gaining an enormous reverberation from contemporary academics and judges. Hamburger's arguments, while enlightening, are flawed.

This article aims to justify the administrative state to which Hamburger strongly objects. The administrative state is a political status quo in modern democratic countries. On one hand, to cope with extremely complicated-and-technical problems, the legislatures constantly enact laws delegating agencies to conceive statutes to accomplish policies of the laws. On the other hand, the separation of powers demands each branch exclusively enforce its power. The courts, based on this principle, have the final authority to say what the law is; however, the court can only give great weight to agency statutory interpretations since they do not have corresponding expertise to review the cases. Therefore, the administrative state constitutes a dilemma for constitutionalism.

In repudiating Hamburger’s rationale, this article not only provides several informative rebuttals for Hamburger’s arguments but also proposes an argument to accommodate the tension between the administrative state and the separation of powers. Also, I will show the seemingly most pervasive criticism of Hamburger’s rationale fails to archive its goal. Even worse, this criticism approves the legitimacy of anti-constitutionalism. Adrian Vermeule and Cass Sunstein use both the procedural aspect of the rule of law and the Dworkinian justification of decision-making to reject the tryannophobia of the administrative state. This approach of argument, however, can be used to justify authoritarianism as well. The consequence of blatant anti-constitutionalism cannot, in any case, be seen as an acceptable counter-argument to conservative jurisprudence, like what Hamburger proposes. To avoid this result, the substantial values of constitutionalism, for example, democracy-against-tyranny, are worthy to notice, which illustrates the genuine meaning of Hamburger’s rationale.

ABSTRACT. This presentation aims to answer the following question: what causes the decline of liberal constitutionalism in Poland? I argue that the main cause of the decline of liberal constitutionalism in Poland is creating an alternative constitutional vision so called a counter-constitution. Such constitutions reach beyond the legal domain and can dominate social imaginary: they shape social expectations and understandings and come to be taken for granted. Of course, managing counter-constitutional vision is not wrong as such and an alternative constitutional vision can be present. But what is unacceptable is that managing an alternative constitutional imaginary and counter-constitutional vision may lead to delegitimization of constitutional order and the Constitution itself. I also argue that the Polish Constitutional Court plays a significant role in managing an alternative constitutional imaginary. The Polish Constitution originates in the idea of inclusiveness and openness to many world views. It is undoubtedly present in the origins of the Constitution and is still visible in its text, especially in the preamble. But the Polish Constitutional Court judgment on abortion vividly illustrates that judges produce alternative visions of constitutional order grounded in different understandings of what the constitution is.

ABSTRACT. Recently, in the article entitled “Relational Equality and Immigration,” Daniel Sharp has proposed an egalitarian argument for open borders in relational egalitarian terms, which is highly novel an attempt in the field of the justice of immigration. On Sharp’s view, what is problematic about the affluent states’ exercising the border control against the disadvantaged is that in doing so, they exercise an objectionable form of asymmetric power over the disadvantaged. For the exercise of power by the one party over the other to be asymmetrical, it should be the case (1) that the value of the goods and opportunities denied to the latter (through the exercise of power by the former) is unequal in significance to that of the goods and opportunities denied to the former (through the exercise of power by the latter), and (2) that the latter has difficulty accessing the relevant kinds of goods and opportunities in some other way. Therefore, he contends, unlike the cases where those immigrants from the poor or middle-income states are denied the entry, the immigration restrictions against those coming from the affluent states are out of concern of relational equality because there is no exercise of asymmetrical power involved.

In this presentation, I challenge his position on the restriction of scope above. As for the condition (1), I argue that since the ultimate concern of relational egalitarianism is that individuals (not groups per se) relate to others as equals, the fact that the value of the goods and opportunities denied to each other is roughly equal (when two affluent countries are excluding the immigrants from each other) is not all that counts from the viewpoint of relational equality. As for the condition (2), I argue that it cannot categorically be said that the immigrants from the poor or middle-income states (but not those from the affluent countries) would have difficulty accessing the relevant goods and opportunities in their respective home countries if denied the entry, by pointing out that affluent individuals are present in developing countries as well, and that there are some important opportunities (e.g., standing in an associate relationship based on love), the substitutes for which even the citizens from affluent states cannot seek in their home countries if denied the entry. I then counter some objections to my position.

ABSTRACT. In general, meritocracy is the idea of celebrating those who achieve higher results or performance. This is because it is assumed that higher performers have higher 'ability'. However, it is also known that the level of 'ability' is determined by genetic and socio-economic factors. The ability-based approach is unfair because inequalities are likely to be caused by factors beyond an individual's control. In Japan, for example, it is said that university entrance examinations are basically based on the 'score' of a written or other examination. This is because people believe that test scores are more objective and fair than any other ways. At the same time, however, there are reports that a candidate's income is related to their exam score. This means that economic advantage is important in passing entrance exams, suggesting that there may be inequalities that cannot be overcome by individual effort. Based on this awareness of the problem, I would like to take entrance examinations as a concrete application of meritocracy and try to point out the problems and solutions. In the US, attempts are being made to reduce inequalities in this area through so-called affirmative action. The policy is based on the belief that enrolment in university will help to increase earnings later in life. It is also said that African Americans in general are economically disadvantaged, and the aim was to raise their status to close the gap. However, there have been a few cases in recent decades where non-African American applicants who were rejected as a result of the policy have taken the university to court. For my master’s thesis, I would like to research the above US case studies in detail to see if there are any findings that can be applied to Japanese entrance exams. This is because there is a movement in Japan to set special quotas for entrance exams based on gender. And this is often justified on vague grounds such as ensuring diversity. There are many issues to consider, such as whether it is justifiable to correct inequalities based on social characteristics, and whether such measures are permissible on the basis of gender diversity. I would like to explore the question of what grounds are required to justify a policy of establishing a special quota, using US case law as material, and in particular examining it from the perspective of equality of resources as advocated by R. Dworkin.

ABSTRACT. The ethical arguments for basic income (BI) emphasize its potential to promote freedom, self-respect, and non-domination through income's unconditional and equal distribution. However, the moral justification for providing the same income to individuals with different needs is under dispute. It is natural to think that those in need should get more. Also, it is hard to justify giving the same money to the rich and poor since the rich already have more and do not need as much help. This paper provides a moral argument for BI in light of the principle of equal respect because BI activates the equal treatment of people by providing uniform income regardless of their socio-economic status. This treatment has two advantages: First, it can prevent the potential stigmatization associated with differential income distribution. Second, it can respect the welfare of all individuals, including the wealthy. However, serious concerns may arise regarding the basic income distribution to meet individuals' varying needs. In response, we argue that individuals can increase their income through work and other means to meet their needs. Furthermore, exceptional priority is given to those severely disabled and unable to work before basic income distribution is implemented. This perspective strengthens the moral foundation for supporting universal basic income by emphasizing its value as a manifestation of equal respect. While previous arguments support the implementation of BI to promote freedom, self-respect, and non-domination, they primarily focus on BI as a policy for achieving morally desirable outcomes. This paper does not advocate basic income to achieve other values but rather directly demonstrates the value that basic income has. As a result, researchers can better understand and evaluate the normative basis and practical implications of the basic income distribution, contributing to a more informed debate on its ethical and practical dimensions.

ABSTRACT. Legal positivism is generally considered a legal approach that explains the nature of law through its positivity. Since, from this perspective, the law should first be posited, and since being posited in modern law implies being given in the form of a rule, every criticism of legal positivism tends to attack its statutory character. However, law can be posited in different means, and any criticism of legal positivism should therefore be able to problematize the "positivity of law" and its relation with the concept of law. For Hegel law is the posited right. In this sense, Hegel would also agree that law in its very nature is posited. This positivity, however, makes law dependent on the idea of right, which is nothing other than the actualization of freedom. According to Hegel, in order to grasp the true nature of law, it is necessary to go beyond this positivity and focus on its relation to the idea of right. This paper aims to present Hegel's concept of positive right as the starting point of a coherent analysis of legal positivism. First, the various forms of positivity that Hegel presents in his "Philosophy of Right" are explained and exemplified in light of his absolute idealism. It is then argued that Hegel's struggle against the historical school of law, which played an important role in the scientification of law in the 19th century, can be regarded as a kind of criticism of legal positivism. In conclusion, it is argued that Hegel's theory of positive right can offer a much broader understanding and criticism of contemporary legal positivism, first by providing different means by which the idea of right can be posited and then by relativizing each of them against the concept of absolute right.

ABSTRACT. Meta-ethics plays a significant role in shaping the theoretical foundations of legal philosophy. In the first half of the twentieth century, value relativism, a metaethical position, gained popularity among progressive legal philosophers. Both Hans Kelsen and Gustav Radbruch, two prominent legal scholars, subscribed to this view, citing it as a reason for their commitment to specific progressive values. However, the two philosophers held different views on the concept of value relativism. This paper seeks to shed light on their differences and illuminate the various meanings and functions of value relativism in their legal theories. Furthermore, the paper will also explore the implications of these differences for the reception of the Western legal system in East Asia.

In the second part of this paper, I will argue that Kelsen's theory of law underwent significant development over time, but that he retained his core belief in relativism. I will argue that Kelsen's value relativism is primarily based on the positivist Weltanschauung and I will call Kelsen's relativism "positivist value relativism".

Radbruch's approach to value relativism is more complex. In Part III, I will show that Radbruch believes that value relativism necessarily implies many progressive values and institutional arrangements, especially those that demand moral and political equality for all and checks and balances on political power. I will argue that Radbruch 's moral theory is not based solely on the self-legislation of the autonomous moral subject, but is placed in the social context of encounter with other subjects. And Radbruch 's concept of practical reason is best understood as a kind of engaging reason that requires not only judgment but also activity. I will call Radbruch’s position the practical value relativism.

In what follows, I will elaborate several implications based on my previous interpretation. In particular, I will argue that Kelsen's theory supports metaphysical naturalism, and Radbruch's ethical theory is value relativism at the outset and moral objectivism in practice and process.

Regarding the East Asian reception of the Western legal system, I will argue that Kelsen's positivist value relativism, as a theoretical paradigm, would be particularly welcomed by the instrumental rationality in the reception process; and Radbruch's practical value relativism, as another paradigm, can find an echo in the efforts at value rationality that can also be found in the reception process.

ABSTRACT. Hans Kelsen’s Pure Theory of Law seems to be one of these points in legal culture, where East meets West. Both legal cultures, although exhibiting vast differences, seem to treat Kelsen’s theory as a reference point. The typical answer to why this is the case offers two arguments. Firstly, this was the aim of legal positivism, which examines the concept of law, and hence it should apply to any legal system. Second, it seems that Kelsen’s theory fits to civil law systems very well, contrary to common law. Therefore, Kelsen's theory applies to any civil law system, including those existing outsides of Europe. However, such an explanation is not complete, since it does not provide the answer to why, among all positivistic theories, which apply to the civil law system, Kelsen’s theory was always among the most successful one. This paper’s aim is to address this enquiry and examine whether theory proposed by Kelsen is as universal as he claims it to be. It will be argued that this is the case due to elements of his theory which are on the implicit level. Kelsen was not able to employ these philosophical tools in pure theory of law, because philosophical tools necessary to make them explicit were developed later. These philosophical tools are conceptual metaphors, especially the metaphor of Stufenbau; hidden patterns of legal thinking, such as supervenience as a link between Is and Ought; and finally, successful scientific models which Kelsen created, such as a positivistic and normative model of law. These elements seem to be universal and common to Eastern and Western legal thought. If this hypothesis turns out to be true, this would mean that Kelsen’s intuitions have a strong impact on legal thinking due to these implicit elements. For example, the metaphor of Stufenbau, when taken as conceptual, envisions our understanding of the hierarchy in law; Setting appropriate relations between Kelsen’s signature categories such as norm and will, imputation, or basic norm, efficacy and validity adds to understanding how lawyers think; scientific models enable understanding law as it is, which is pure from any alien elements. I will analyse this problem in the framework of General Theory of Norms, due to its open-texture, which allows for a more dynamic interpretation that the classic version of Kelsen’s theory.

ABSTRACT. This paper explores the question of whether a law can be considered just or unjust, a fundamental concern in jurisprudence. It begins by defining law as a norm that obliges, prohibits or permits certain actions by individuals. These norms are categorised as individual norms (imposing obligations on specific individuals) and general norms (including statutes and customary law).The concept of justice is examined, drawing primarily on Aristotle's definition of justice as equality. This equality is further divided into corrective justice (restoring equality between parties) and distributive justice (treating equals equally).The paper argues that corrective justice is a subset of distributive justice, focusing on cases where two actions are already considered equal. However, Aristotle's concept of distributive justice as equality doesn't specify 'which perspective to focus on' and 'how to treat equal acts', leaving these considerations to external factors.The question of whether an individual norm (e.g. a judgement or a contract) can be regarded as just is addressed. It suggests that an individual legal norm is just if it confers the same benefits or burdens as those with which it is compared.General norms, such as statutory provisions, are divided into rules and principles. Rules are seen as concrete examples of distributive justice and are not subject to judgments of justice. Principles serve as criteria for evaluating the correctness of rules, based on the principle of proportionality. Finally, the paper divides the question 'Is a law just or unjust?' into two parts: the justice of individual norms and the justice of general norms. Individual norms can be judged on the basis of compliance with the principle of equal treatment. General norms, as rules, are not subject to judgments of justice, but can be assessed for compliance with the principle of proportionality. This nuanced perspective highlights the complexity of assessing the justice of laws in different contexts.

ABSTRACT. At the present time tensions are constantly increasing between East and West, more particularly between China and the West. While these tensions may be expressed in different legal views about such issues at the ownership of the South China Seas, or the legal claim of China to Taiwan, they are also ideological or even civilizational. One inspired Western philosopher who already saw the world as in a state of transition towards a new global order was Karl Jaspers, who wrote The Origin and Goal of History (first published in German in 1948, in English in 1953). Realizing that new foundations for global order would have to be trans-civilizational, Jaspers pointed to the startling fact that the first and still primary flourishing of human consciousness was during what he termed ‘The Axial Period’ around 500 BC, a spiritual process that occurred between 800 BC and 200 BC. During this time Confucius and Lao-tse (China) Upanishads and Buddha (India), Zarathustra (Iran) Elijah, Isaiah and Jeremiah to Deutero-Isaiah (Israel/Palestine) Homer, Parmenides, Heraclitus, Plato, Thucydides and Archimedes (Greece) all expressed similar tendencies to resist myth and superstition with appeal to rationality. They taught ‘man to become conscious of Being as a whole, of himself and his limitations…Face to face with the void he strives for liberation and redemption...All this took place in reflection. Consciousness became once more conscious of itself, thinking became its own object. ...Discussion…the division of the spiritual realm into opposites which nevertheless remained related to one another, created unrest and movement to the very brink of spiritual chaos…” (The Origin and Goal of History, 1953 Routledge&Kegan Paul, at page 9) Jaspers warned that with the fading of Western dominance, the world was in a very dangerous stage of prolonged transition. The previous Axial Period ran only in parallel. Now it was necessary to search for ways to bring these foundations of civilization – still decisive in the modern world – together.

ABSTRACT. In the 1950s, the contemporary new Confucianism of Hong Kong and Taiwan proposed the theory of the “Development of Democracy from Confucianism”, which states that the emphasis on the moral subject in Chinese history and culture must develop into democratic institutions. Nonetheless, this theory has given rise to a lot of controversy, with many liberals arguing that Confucianism contains many claims that are inconsistent with democratic institutions, such as monarchy. In his book Confucian Perfectionism, Joseph Chan tries to tackle this enormously important issue: how to not only integrate Confucianism with institutions of liberal democracy—limited government, democratic elections, human rights, and civil liberties—but also show Confucianism’s potential contributions to democracy.

In Chan’s theory, while democracy can express the political values that Confucianism endorses, namely, the ideal political relationship marked by mutual commitment and trust between ruler and ruled, Confucian perfectionism can also work to the advantage of democracy. Confucian virtues—respect, reverence, sincerity, lenience, truthfulness, industry, and beneficence—enable people to become good citizens and alleviate antagonism and distrust in society. Chan even proposes a second legislative chamber whose members are selected based on virtue and competence in order to provide educational role models for other politicians and the whole citizenry.

However, do these virtues always not cause any problems within a liberal democratic society? What would democratic discussions look like under a Confucian education? The author of the present article will argue that Confucian virtues can also be detrimental to democracy. Even though Chan supports a moderate version of perfectionism, the situation will not be better. Moreover, the implementation of Confucian education also depends on democratic institutions. Therefore, it is not clear from which point Chan starts in the cycle constituted by democratic institutions and Confucian education. At the end of this paper, I will argue that Confucianism is hardly compatible with democracy without losing its values.

ABSTRACT. According to the conventional reading, Han Fei (born c. 280, China—died 233 BCE), the most original and important ancient Chinese philosopher of law, considers law as an amoral instrument of a central authoritarian ruler for consolidating and maintaining his power. In his excellent article ‘The Internal Morality of Chinese Legalism’, Kenneth Winston offers a revolutionary Fullerian reading of the writings on law of Han Fei. Winston argues that

(a) Han Fei’s ruler desires for people to prosper, and ‘sees in subjects the exercise of independent moral agency’. (b) Han Fei’s ruler ‘embraces the moral core of the rule of law, the idea of impersonal governance’; and ‘the Han Feizi advocates a purer form of the rule of law than is offered by many Western theorists’. (c) The work of Han Fei’s ruler is to facilitate subjects’ self-directed activities by creating conditions and clearing away obstacles for them.

In my paper, I will challenge Winston’s Fullerian reading of Han Fei’s writings on law by examining it against Han Fei’s philosophy as a whole, and I will argue that there is a great deal of textual evidence pointing to directions contrary to Winston’s reading. Although my interpretation of Han Fei challenges Winston’s reading, I accept that there is very much truth in the latter. The main point of my paper is not to argue that Winston’s reading is wrong, but that it does not offer a complete and balanced picture of Han Fei’s theory of legality, and that Han Fei’s thought is far more complex and sophisticated than both the conventional authoritarian reading and Winston’s revolutionary Fullerian reading.

ABSTRACT. The purpose of this article is to clarify civil disobedience through the autonomy-based principle (the principle of autonomy). Civil disobedience is a movement in which citizens appeal to justice beyond the law, and it involves disobedience to the law. Examples of this movement include the civil rights movement and anti-war movements in America during the 1950s and 1960s. The core issue of this movement is the defense of the right to freedom, which is threatened when people's autonomy is significantly restricted and their freedom and lives cannot be secured. However, while civil disobedience can be deemed acts against the law, can they be considered acts against "the rule of law "? The rule of law supports the equality of all citizens before the law and prevents arbitrary use of power. It also means to reject the rule of man, and require that all authority and people should obey the law. Since all actions should be governed by law, there is no space for civil disobedience. On the other hand, in a dictatorship, the government undermines the rule of law, and policies cannot be governed by the law, so civil disobedience is naturally futile even if it is claimed.

In modern times, the focus of this debate has shifted from the limitations on individual personality to the political ideal of democracy. In Taiwan, there was the " Sunflower Student Movement" in 2014 where citizens occupied the parliament in Taiwan and claimed civil disobedience because of concerns that "Economic Cooperation Framework Agreement (ECFA)" with China was improperly passed by the legislature and that opening up trade with China would threaten the personal freedom, talent outflow, safety of speech, and nation information security of Taiwan. However, since restrictions on human rights regarding citizen "freedom", "life", and "autonomy" by governments are the main cause of the threat to democracy, is it possible to justify civil disobedience within the framework of autonomy-based principle? In this sense, I would like to explain the theory of civil disobedience using the concept of autonomy advocated by Joseph Raz, Gerald Dworkin, and Isaiah Berlin, and examine the issues of the theory of civil disobedience while applying the concept of autonomy.

ABSTRACT. When is a state legitimate, and why? This is arguably one of the most fundamental questions in political and legal philosophy. However, there is far from any consensus on what the concept of legitimacy means, resulting in theorists talking past each other due to differing interpretations of the concept. Advancing legitimacy theory thus requires conceptual clarification of legitimacy. Against this background, this paper addresses the question of how we should understand legitimacy by undertaking two tasks: 1) examining appropriate methods to clarify legitimacy’s meaning, and 2) presenting an appropriate concept of legitimacy based on the methodological examination. For the first task, after rejecting two major approaches to clarifying ambiguous concepts–descriptive and stipulative approaches–, the paper defends Carnapian explication, a sub-version of conceptual engineering. Conceptual engineering is a prescriptive approach to conceptual determination that involves evaluation and improvement of problematic concepts. Explication, as a sub-version of conceptual engineering, refines ambiguous concepts to promote theoretical purposes, making it suitable for advancing legitimacy theory. Importantly, in the framework of explication, the primary criterion for appropriateness of the explicated concept is its “fruitfulness,” namely, its usefulness in developing theories with theoretical virtues. Regarding the second task, the paper proposes two modifications to existing understandings of legitimacy. First, existing legitimacy study often equates legitimacy with a state’s right to rule, overlooking that a legitimate state not only has the right but also duty to rule. Given that legitimacy theories have focused on the justifiability of the moral relationship between the state and its subjects, this understanding is problematic in that it fails to capture the full picture of such relationship. In light of this, drawing from role morality studies, this paper advocates for an alternative fruitful concept called “Legitimacy as Role-Fittingness,” understanding legitimacy not as identical to a state’s rights but as its “role-fittingness,” from which both duties and rights are derived. Second, existing legitimacy study often understands legitimacy as encompassing general authority to impose a duty to obey the law on subjects. However, given that justifying a general duty to obey the law is difficult even under a reasonably just state, this understanding implies that no known states are legitimate, making it insufficiently discriminating between legitimate and illegitimate real-world states. In response, this paper advocates for “Legitimacy without General Authority,” thereby opening up possibilities for novel legitimacy theories that are immune to the difficulty of justifying the duty to obey the law.

ABSTRACT. Contemporary literature on civil disobedience heavily concentrates on the proper definition and scope of this concept and the conditions of its justification in terms of political morality. Relatively little has dealt with how the judiciary should respond. Taiwan as a new liberal democracy experienced a surge of social and civil movements after 2008, culminating in the Sunflower movement. This period of surging disobedience led to a groundswell of judicial decisions showcasing the courts’ dynamic interactions with civil society. Based on analysis of dozens of judicial decisions in the decade preceding the Sunflower movement, I identify four models of judicial responses, which include “static formal law”, “conflict management”, “tolerant indulgence”, and “dynamic formal law”. Further, the radical actions of the Sunflower movement created such pressure on the court that it had to break from the preceding models and adopt the fifth model, namely “adjudicating change.” I argue that the emergence of the last model is premised on a special meta-narrative of the rule of law held by a significant segment of Taiwan’s civil society and the legal profession. Then I critically assess the merits and limits of all these models, especially the model of “adjudicating change”, and assess their implications to the rule of law in a liberal democracy plagued by political polarization.

ABSTRACT. What is marital status discrimination? Is it simply treating the married and the unmarried differently? Inspired by John Stuart Mill’s pledge to allow Harriet Taylor Mill to retain the same freedom “as if no such marriage had taken place,” political philosopher Clare Chambers argues for the “marriage-free state” based on this principle. Indeed, adopting a definition of marital status discrimination that includes any difference in treatment between married and unmarried persons could imply the need to abolish legal marriage, as it inherently confers a distinct set of rights and obligations on those who enter it. However, international human rights law and national laws prohibiting marital status discrimination affirm the legitimacy of marriage as a legal institution and do not call for its abolition. Rather than delving into the contested question of abolishing marriage, this paper assumes that marriage remains a legal institution and seeks to reexamine the definition and manifestations of marital status discrimination within the current legal and social landscape. Discrimination, as defined in this paper, encompasses distributive injustice, such as economic disadvantage, and symbolic injustice, such as stigmatization. It recognizes that discrimination involves the imposition of disadvantages on one group and the granting of privileges to another group within a particular power dynamic. Historically, marital status discrimination has often been associated with the disadvantaged treatment of married women and, to a lesser extent, single women. The flip side is the patriarchal dividend of married and unmarried men. However, shifting legal, policy, and social trends relating to marriage, including the equalization and expansion of marriage, the rise of singlehood, the diversification of family forms, and pro-marriage population policies in East Asia, raise new questions and challenges. First, has marital status discrimination become gender neutral, or does it continue to intersect with inequalities of gender and sexual orientation, manifesting in various forms? Second, does the legalization of same-sex marriage necessitate the adoption of a separate category of “same-sex marriage discrimination” to address new inequalities facing LGBTQ+ people? Third, should state measures that promote marriage be considered discrimination against single people based on their marital status, and what is the relationship between marriage privileges and marital status discrimination? Lastly, does discrimination based on one’s nonmarital relationship status, such as cohabitation, constitute marital status discrimination? This paper will address these questions and consider the applicability of the “singlehood neutrality” principle proposed by feminist legal scholar Naomi Cahn in defining marital status discrimination.

ABSTRACT.         This essay delves into the concept of public reason through a Rawlsian lens, aiming to scrutinize its compatibility with Rawls' notion of stability. Drawing inspiration from Rawls' theory of stability, the paper extends a critical perspective on the concept of public reason. The analysis highlights a potential incongruity: the concept of public reason, as examined, does not inherently guarantee stability. The exploration unfolds through both theoretical dissection and a case study, underscoring the inherent instability of the public reason framework. By investigating the motivations and rationales involved, the root of the issue becomes clearer.

        Embedded within Rawls' framework of public reason lies an implicit exclusion of religious and comprehensive ideals, possibly compelling individuals to furnish external reasons or weaker internal reasons. This phenomenon becomes evident in the context of the same-sex marriage debates in Taiwan, serving as an illustrative example: participants in public discourse face challenges refraining from drawing upon their deeply held beliefs. Even in attempts to transmute personal comprehensive doctrines into a public format, the essence of their reasoning remains intricately interwoven with their specific conception of the good. Both aspects - the exclusion of comprehensive doctrines and the inherent appeal to personal beliefs - emerge as genuine or potential stumbling blocks within Rawls' construct. Through the theoretical analysis and case study, this essay reevaluates Rawls' theory of public reason and its congruence with stability.

ABSTRACT. Singapore's parliament recently decriminalized homosexual acts by repealing a controversial law enacted in British colonial times, section 377A of its Penal Code. The law had been the subject of extensive parliamentary debate in 2007 and retained for symbolic reasons even though the government suggested that it would not be pro-actively enforced.

Since 2007, there had been much political activism for legal change. Homosexuals suggested they were treated as criminals by the mere existence of such a law on the statute books. Perhaps encouraged by what was happening in the West and in India, they challenged the law in the courts for violating the equal protection and other provisions in the constitution.

Along with the recent repeal, the Singapore government sought to strengthen legislative and executive powers to support heterosexual monogamous marriage through a new constitutional provision that states that laws and policies based upon the definition of marriage as being a heterosexual union cannot be challenged in court on the ground that constitutional rights are violated.

I will examine the unusual approach taken by the Singapore government of legislatively doing away with a law criminalizing homosexual acts, while at the same time acting to strengthen apparently heterosexual norms through protecting the laws and policies that support the traditional institution of marriage. It contrasts with the approaches in the United States and elsewhere, where more expansive definitions of marriage followed upon courts holding that criminalization of sodomy or homosexual acts was unconstitutional or upon legislative decriminalization. Singapore’s unique approach towards a law which it had inherited from its Western colonial master serves as a counter-cultural jurisprudential signal in a political and legal climate of the world in which heteronormativity is increasingly frowned upon as unjust – not just in the West, but in India, another ex-British colony. It signals that repeal of a law criminalizing homosexual acts should not be taken as suggesting that homosexual acts and heterosexual acts are on par and therefore that both types of relationships deserve the support and protection of laws and policies relating to housing, education, media, and so on. How this signalling reflects a deeper awareness of the jurisprudential underpinnings of related laws and policies, and the tension between the roles of the legislature and the courts in a jurisdiction in which the constitution is supreme, will be examined.

ABSTRACT. This research aims at comparing gender equality and financial technology in the East and West. According to the 2021 Women, Business and the Law report by the United Nations Women Development Programme, women in East and South Asia have relatively low participation in the labor market and politics. The report shows that only 23.3% of parliamentary seats in Asia are held by women, compared to 40.6% in Northern Europe, 32.4% in North America, and 30.1% in Western Europe. Additionally, the employment rate for women in Asia is 48.5%, which is significantly lower than the rates for women in Northern Europe, North America, and Western Europe, which are 72.7%, 69.6%, and 65.9%, respectively.

Furthermore, the report on Women's Participation in the Digital Economy in Asia by the Asian Development Bank indicates that women in Asia are often marginalized and face barriers to accessing financial services and capital, which limits their economic and social development. The report highlights that 49% of women in Asia do not have financial accounts, while digital financial inclusion rates for women are higher in North America and Europe.

Regarding policy and regulation, the Global Gender Gap Report 2021 by the World Economic Forum shows that Nordic and Western European countries perform better in digitization, financial technology, and gender equality. These countries have higher digital payment and electronic banking penetration and more supportive policies and regulations for promoting women's economic and social development.

The significance of this study is not only to shed light on the gender gap and financial technology in different regions but also to contribute to promoting gender equality and financial inclusion globally. I believe that this research is important in addressing the challenges that women face in accessing financial services and capital, which is essential for their economic and social development. Furthermore, this study can inspire cross-cultural and cross-national studies, encourage academic and policy exchanges, and facilitate collaborations that can help to promote gender equality and financial inclusion worldwide.

ABSTRACT. We seem to assume that we can learn something from comparative law, that is, from the comparison of the laws of non-identical legal systems. There is a long-standing discussion on what we can learn from comparative law. More specifically, the debate concerns whether we can learn something useful from comparative law for legal reasoning. In this paper, I wish to complement this discussion by asking how we can learn from comparative law. In particular, I address the – actual and potential – structure of comparative law arguments in legal reasoning. By ‘comparative law arguments’ I mean arguments that feature as one of their premises a comparative relation, that is, a relation of similarity or difference, between the laws of non-identical legal systems. And by ‘legal reasoning’ I capture reasoning about what the law is as well as reasoning about how a case ought to be decided according to the law (as opposed to how a case ought to be decided all things considered). I start by analysing actual, and prominently discussed, instances of comparative law arguments. The three instances I pick out are (1) the argument from consensus among legal systems worldwide to prohibit the juvenile death penalty as featured in the US Supreme Court’s decision in Roper v. Simmons, (2) the so-called floodgate argument and its refutation encountered in national and international debates about the protection of pure economic loss in tort law, and (3) an argument that draws on the fact that another legal system solves a similar legal issue in a certain way to conclude that this solution would solve the similar legal issue in this legal system just as well. I demonstrate that (1) is best rendered as an (inductive) argument from authority, that (2) may be construed as a deductive inference, and that (3) is an instance of analogical reasoning. Apart from varying modes of inference, comparative law arguments feature different types of conclusions. In a second step, I examine under which circumstances and presuppositions we may reliably infer useful insights for legal reasoning from comparative relations between the laws of non-identical legal systems. While such comparative relations will only rarely allow for reliable conclusions about what the law is, they may frequently (be construed to) amount to strong reasons to believe that a certain decision is the best one according to the law.

ABSTRACT. Law and facts are the two components of judicial review. It is widely known that there is no unitary understanding of judicial review. Rather there are different standards of review both within legal orders and on a comparative scale. Different standards of review imply different levels of factual and legal certainty.

For instance, there are understandings of judicial review, which imply total review of both law and facts. Such an idea of review is driven by the idea of a single right decision. The opposite extreme applies a standard of review, which avoids fact-based merits review entirely. This approach is based on an understanding of the relativity of facts and merits. And there are standards which are somewhere in between. These types of review represent different ways of what knowledgeable fact are in contexts of public law.

These different understandings of the meaning of judicial review can be found all over the world (Australia, Japan, South Korea, Germany and Europe, USA, etc.). Traditionally these differences have been interpreted along constitutional and institutional criteria. However, they also have a distinct epistemological logic, which has not yet been the focus of attention.

This is regrettable, because an epistemological analysis of structures in public law might both help understanding and improving existing standards of review. This could be seen on a global scale during the pandemic. There were two decisive features of judicial review during the pandemic: the tremendous lack of knowledge, expertise, and experience on the one hand, and high time pressure on the other hand. Different systems had their own problems with judicial review in this context. While some legal orders experienced a total loss of judicial control, other countries struggled with a very active judicial review hindering public authorities to understand the pandemic productively as a field of trial an error.

The here proposed presentation aims to contribute to close this research gap at the intersection between philosophy of law (esp. epistemology, logic of science, etc.) and the theory of public law. It does so by deploying both a philosophical and a comparative analysis of different types of judicial review. The idea is not to nominate a “best” model, but to show how standards of review entail unspoken epistemological logics which suit their constitutional structure, or which don’t. By this my paper also aims to promote “comparative legal philosophy”.

ABSTRACT. 　　　In this work, I focus on the correct method of legal interpretation. In my view, I believe that the theory of legal interpretation lies on a much more fundamental problem of the law itself, whether law is intrinsically connected to morality or not.

　　　Seeking through the current debates in the United States of America, I focus on two opposite theories of legal interpretation: Originalism and Moral Reading. On the one hand, Originalism is based on the ground that law is primarily oriented toward authoritative issuance, which is strongly connected to a positivistic theoretical standpoint. Dworkin’s Moral Reading, on the other hand, is based on a non-positivistic theory, which insists that law and morality are intrinsically connected. Therefore, the correct way to interpret the Constitution should be to realize those moral principles.

　　　The point at issue is that the method of legal interpretation lies on the fundamental differences of the theory of law: the opposite position of positivism versus non-positivism. The distinction between positivism and non-positivism in my work relies on Robert Alexy’s thesis ((R. Alexy, Law’s Ideal dimension ［Oxford University Press, 2021］). According to his separation thesis, the positivistic concept of law is connected primarily to authoritative issuance or social effectiveness. Therefore, the law must be defined to include no moral elements. By contrast, the non-positivistic concept of law defines it as intrinsically connected to morality.

　　　Recently, new debates against Originalism have been reoccurring, and I would like to look through the recent arguments relating to Originalism. This work aims to examine these new types of Originalism, and by comparing it to its confrontational theories, particularly Moral Reading, I seek to clarify the fundamental characteristics and differences between these two types of theories.

ABSTRACT.      Is there a right answer to each legal question on which the court, exercising its power, makes a decision? What significance do right answers have in legal practice? This presentation examines these problems with reference to philosophical theories of truth.

     Whether there is a right answer to each legal question depends on the meaning of the “right answer” that is assumed therein. If one side takes a correspondence-theory-type understanding of rightness, for example, and the other side takes a consistency-theory-type understanding, the arguments will cross paths unless the “rightness” assumed by each side is also subject to discussion.

     This presentation will first show that right answers serve as one of the questions built into the legal system. In arriving at this conclusion, I refer to Yukio Irie’s question–answer theory and arrive at the following conclusion: the rightness of legal judgments is not an issue of whether there is actually a single right answer to a given legal question but rather one of how the question of whether an answer is right is incorporated into the legal system as a legal issue in itself.

     I will then describe the significance and role of right answers in legal matters. One conclusion in the presentation is a pluralist understanding of truth, in which legal judgments are combinations of subdivided judgments that each contain different types of rightness, and a pragmatist understanding of rightness, that is, rightness as a norm for orienting legal arguments.

     Within this understanding, “right answers” serve as the norm that must be pursued by judges and other legal professionals who solve legal problems. This understanding of rightness is particularly inspired by the understanding of truth held by certain philosophical pragmatist positions.

ABSTRACT. The rapid development in the possibility of information connection, integration, search, and analysis has had a huge impact on diverse and differentiated database systems. Citizens in a digital society who are individuals with the right to exercise find themselves powerless in individual rights claims.

Relying on information application technology, the government carries out large-scale, undifferentiated, and continuous surveillance of people. The privacy crisis derived from people’s digital footprints, which are extremely easy to obtain, is not uncommon in both Japan (“Basic Resident Registers Network”(so-called Juki Net, 住基ネット) and Taiwan (National Health Insurance database litigations) Apparently, under the current situation in which various types of data continue to appear and be collected in large quantities, countries around the world are still facing the difficult question of how to establish a comprehensive and supportive review mechanism so that individuals can avoid the risk of personal data infringement from data comparisons.

Therefore, the research orientation of privacy theory should be gradually transformed from the classical theory of personal exclusive rights infringement to the recognition of the irreversibility, non-differentiation, and extensiveness in a systemic manner, and this should raise awareness of the key issue: how its structure and system should be designed to effectively avoid the risk of systematic infringement and abuse of personal data.

This article chooses Japan as a case study for comparative legal systems, starting with the framework of Japan’s personal data protection laws to unpack the evolution of the concept of “information privacy rights.” The article further examines the arguments underlying large-scale database lawsuits in Japan, focusing on the landmark 2008 judgment of the Supreme Court on the Basic Resident Register System and the My Number lawsuit in Osaka District Court and Sendai District Court since 2015. Finally, the article returns to the interpretation of Constitutional Interpretation No. 13 of the Taiwanese Constitutional Court in 2022, attempting to evaluate the guiding function and trend impact of the representative database lawsuits in both countries on future data governance from a comparative jurisprudence perspective.

ABSTRACT. The paper aims to address the legal challenges posed by the increasing popularity of treatment based on Asian techniques (such as acupuncture, reiki or ayurvedic medicine), making up a substantial part of the so-called CAM (complementary and alternative medicine) phenomenon. The market success of such therapeutic practices has made them a huge domain of the healthcare sector, parallel to scientific medicine, in many cases involving a particularly vulnerable group of those who, due to illness or suffering, desperately look for help and hope. Although the legal approaches to the CAM phenomenon differ significantly among EU countries, none of the existing regulatory solutions can be regarded as sufficiently considerate. That is because the central questions underpinning the relevant legal policies remain unresolved. Is there a case for a stricter regulatory intervention? Should it be based on the strict paradigm of evidence-based medicine, irrespective of differences in the cultural roots of various healing traditions? What legal means may optimally balance conflicting values and interests at stake? The regulatory gap prompts considerable ethical and public policy concerns. However, any legislative action in this respect should be based on recognising the complexity of the underlying problem and a thorough, rational and interdisciplinary analysis of its intricacies. Thus, I examine three basic regulatory approaches that can be adopted towards CAM. The potential models may rely on (i) market competition and self-regulation, (ii) strict standards of scientific evidence or (iii) compulsory disclosure of relevant information and informed individual choice of a patient, respectively. I identify and evaluate the ethical pros and cons given the foreseeable consequences of each model and argue for what I conceive as optimal regulatory standards for CAM.

ABSTRACT. China and the West should seek for normative consensus in today's changing world order. It is argued that China's ‘New Era of Chinese Socialism’ in recent years features themes of nationalism and populism, and China’s Hong Kong policy is changing, especially against the backdrop of the changing world order and the increasing conflict between China and the Western world. Hong Kong presents a test case of China’s willingness to adapt Western liberal values of individual freedom and the rule of law in a corner of China, as the Western model of governance, along with its common law system and capitalist economic system, has been permitted to operate side by side with the Chinese socialist system within the framework of Chinese sovereignty and the PRC political and legal system. The formation and implementation of the policy of ‘one country, two systems’ (OCTS) entail Chinese lawmakers’ selective integration of international and Western rules of governance into the Hong Kong and China context to serve the interests of PRC’s party regime. This article explores PRC’s approaches to the governance of Hong Kong in light of the party regime’s political and economic goals and how the Western concept of rule of law and autonomy are perceived and substantiated in terms of the communist ideology. The author argues that the intrinsic value of OCTS lies in seeking complementarity and coexistence between the Western liberal norms of governance and Chinese communist ideology, and this intrinsic value should be upheld and remain in full force to serve as a normative consensus between China and the West.

ABSTRACT. The once universal principle that the mother is the woman who gave birth to the child is increasingly being challenged. Modern reproductive medicine, allowing artificial insemination and surrogacy, increase the complexity of establishing legal parenthood, as it becomes possible to be the genetic parent of a child without being involved in its conception, or giving birth without being genetically related to the child. This tension between genetic and social parenthood creates uncertainties that the legislator must resolve. The path taken is neither logical nor uniform, but shaped by political motives and varies from country to country. While in some countries, the traditional family model is seen as indispensable for the child´s welfare, others take a more liberal position. The latter argue for the human right to a family and the best interest of the child in having a caring family, regardless of genetic relations. Positions diverge even further when surrogacy is debated, with opposition based not only on a threat to the child’s welfare, but also on the potential for economic exploitation and the violation of human dignity for the surrogate. Thus, some parts of the world have adopted restrictive positions on such practices, ranging from outright bans on all forms of surrogacy (as many countries in both the Eastern Hemisphere and large parts of Western Europe) to severe restrictions on assisted reproductive technology. Other countries have come to support regulated commercial surrogacy with access to donated gametes (as certain parts of the United States). Different legal frameworks and jurisprudence shall be presented and compared to provide an overview of possible solutions and policy approaches. The legal systems of Japan, China and Thailand will serve as examples for the Eastern Hemisphere, while certain states of the European Union and the US shall illustrate the situation in the West. The focus of discussion should finally lie on the legal treatment of parent-child relationships that are established abroad resulting from reproductive technologies or surrogacy. This is a complex balancing process between the individual interest of a person in family life on the one hand and the public interest of a state in ensuring compliance with its laws and fundamental values on the other. In between stand the best interests of the child. The political, social, and legal issues involved need to be discussed in the light of the cultural differences between States and can only be effectively resolved at the international level.

ABSTRACT. Migration is one of the adaptation strategies for climate change. Thus the duty to admit climate migrants can be seen as one of the duties to assist adaptation strategies of states or people affected seriously by climate change. As a grounding principle for industrialized states to assist those adaptation strategies, there are three main principles: polluter pay principle, beneficiary pay principle, ability to pay principle. Considering IPCC has announced that it is unequivocal that the cause of recent rapid global warming is man-made in its latest Sixth Assessment Report, it is necessary to first consider whether the polluter pay principle, which states that "the entity that caused the environmental pollution is responsible for the damage caused by the pollution," holds true as a basis for assisting adaptation strategies of states or people affected seriously by climate change. Polluter pay principle has faced four main criticisms: causality problem, excusable ignorance problem, compensation obligations inheritance problem, and damage identification problem caused by non-identity problem. As a result of examining each criticism, in my view, the polluter pay principle holds at least for the effects of greenhouse gas emissions by industrialized states since the late 1980s, when global efforts to combat global warming began. The conclusion above follows that industrialized states have the duty to admit climate migrants as reparation, if the adverse impacts of climate change can only be overcome or avoided through admitting climate migrants. These cases include not only the cases in which people cannot live or survive in the current state because of the submerging of the land or salinization of water due to the sea-level rising, but also the cases in which the future prospects of damage caused by climate change are uncertain because the international society has no prospects of reducing greenhouse gas emissions. In the former cases, the duty to admit climate migrants is like the duty to protect refugees. We owe these climate migrants the duty of non-refoulement. In the latter cases, the duty to admit climate migrants amounts to the duty to receive immigrants or migrant workers. We owe these climate migrants to open a migration pathway to the states where they can live with steady future prospects.

ABSTRACT. Since the mid-1980s, a growing number of moral and political philosophers have advanced a group of theories on distributive ideals: sufficientarianism. A widely accepted definition of sufficientarianism is a combination of two theses: the positive thesis stipulates that it matters for everyone to reach a threshold, while the negative thesis states that distributive justice concerns do not arise above the threshold. There are two primary views characterized by the theses: the head count view advocates maximizing the number of individuals who stay at or above a threshold, and the weighted aggregation view holds that below a threshold, benefiting people matters more the worse off these people are, the more such people are, and the greater the benefit is. However, several sufficientarians have offered other characterizations of their tenet than a combination of the two theses. Notably, an author replaces the negative thesis with the shift thesis, according to which once people have secured enough, there is a discontinuity in the rate of change of the marginal weight of our reasons to benefit them further. The reason shift view consisting of the shift thesis and the positive thesis enables sufficientarians to supplement their central doctrine with egalitarianism or prioritarianism. While sufficientarian views have been much studied in cases of fixed population, only a few attempts have been made to scrutinize them in variable population settings. To fill this gap in the literature, the current presentation investigates sufficientarianism under the assumption of variable population. To begin with, I review the literature on sufficientarianism and its two rivals, namely egalitarianism and prioritarianism. Next, I point out that in variable population cases, a variant of the head count view leads to the sadistic conclusion, which means that it would be better to add people with negative welfare rather than positive welfare to the original people. Then, it is noted that the weighted aggregation view implies the repugnant conclusion, which states that when a large population exists with a high quality of life, there must be a much larger imaginable population whose existence would be better even though its members have lives that are barely worth living. Further, I show that the reason shift view is susceptible to different counterintuitive results, depending on which theory is combined with it, egalitarianism or prioritarianism. To avoid all of these consequences, I propose a novel form of sufficientarianism that does not summate wellbeing of individuals below the threshold.

ABSTRACT. The main issue of this paper is to clarify the ethics of capital punishment in East Asia, specifically from the perspective of de jure law practice. In order to accomplish this objective, this paper will analyze the "sentencing criteria for the death penalty (Shikei ryōkei kijun)" utilized by the Supreme Courts of Japan and Taiwan.

In Section 1, this paper will explain that the sentencing criteria in both countries focus on the blameworthiness of the offense and consider the degree of infringement on the stability and security of the community as crucial elements in deciding whether to pronounce a death sentence. Furthermore, in recent years, if someone commits an extremely heinous act, the possibility of the defendant's rehabilitation may not be considered.

In Section 2, this article will introduce Matthew Kramer's Purgative Rationale, which provides a new perspective that "the only way for a community to restore its moral order when it has been corrupted by a criminal, who commit the most devil offense to infringe upon it, is to execute that criminal." In other words, the community has to purge the criminal, whose wrongdoing rises to a severe level, from the community to restore moral order. Under this circumstance, the death penalty becomes the only means to discharge this duty.

In section 3, this paper will point out that Kramer's theory is similar to the approach (purgative approach) reflected in the previously mentioned sentencing criteria for justifying the death penalty. Namely, Japan and Taiwan have adopted a modern criminal law system based on individualism. However, considering that criminal behavior can affect the norm consciousness reflecting society's values, the sentencing criteria consider the seriousness of the crime and its impact on society. In this sense, this paper aims to explain how the philosophy of punishment reflected in the sentencing criteria adopted in Japan and Taiwan, from the perspective of communitarianism and collective responsibility, is similar to Kramer's theory.

Finally, In section 4, this paper aims to rethink the ethical foundation of the death penalty in East Asia by analyzing the purgative approach from the perspective of punishment philosophy. i.e., to conclude, this paper will analyze and criticize Kramer's theory, compare the purgative rationale and retributive theories, and re-examine whether this approach can justify the death penalty. Based on the conclusion drawn from this examination, the paper will reconsider the retention or application scope of the death penalty in East Asia.

ABSTRACT. This paper will focus on recent developments in the criminal regulation of hate speech in the United States, Germany and Taiwan. As we all know, the United States has relatively loose controls on hate speech. Compared with the United States, Germany has implemented many controls on hate speech due to the lessons of the Nazi experience (for example, Article 86 and Article 130 of the German Criminal Code). In the past two years, due to the rise of the extreme right, Germany has stepped up efforts to control freedom of speech. Taiwan does not have criminal regulations against hate speech. Compared with Germany, Taiwan is walking on the opposite way. Most scholars hope to decriminalize the crime of public insult (Article 309 of the Taiwan Criminal Code), and hope to conduct a constitutional lawsuit to deregulate .

In the first part of this article, I will examine the differences between the East and the West, as well as the differences between the United States and Europe from the perspective of cultural differences and sociology. The second part will transfer to the philosophy of freedom of speech, thinking about what kind of regulation or deregulation should be adopted, and embedding it in different cultural contexts. Finally, from the perspective of criminal law philosophy, I will use the harm principle proposed by J.S.Mill and the offense principle proposed by J.Feinberg (and the well-known Rechtsgut-principle in German law) to illustrate the possibility of hate speech regulation.

ABSTRACT. According to the criminal law system shared in civil law, crimes are constituted with elements of the offense (Tatbestand), illegality (Rechtswidrigkeit), and culpability (Schuld). As these have a sequential structure, the latter is only reviewed if the former is fulfilled. Meanwhile, since Welzel’s finalism, intent and negligence have settled into elements of the offense. As a result, even those without a criminal capacity (Schuldfähigkeit) such as a mentally disordered person can perform intentional or negligent acts. It seems that there is no dominant criticism of this system. In this paper, I criticize this system and argue that those without criminal capacity cannot perform meaningful acts under criminal law. I approach this from three perspectives. First, I analyze the debate on the concept of unlawfulness (Unrecht) which occurred in the 20th century. In Germany, the objective and subjective concepts of unlawfulness had clashed, and the subjective concept of unlawfulness claimed that those without criminal capacity cannot perform illegal acts. This concept was abandoned as it cannot explain "unlawfulness without responsibility (Schuldloses Unrecht)" in tort law. However, the current criminal law and tort law do not appear to share the concept of unlawfulness. Therefore, the advantage of the objective concept of unlawfulness is difficult to acknowledge any longer. Next, I analyze the meaning of acts under criminal law. There is a consensus that only humans can perform acts under criminal law. However, there is no clear answer to the basis for this proposition. Simply considering homo sapiens, which can be derived from biology, as the only legal subject would be insufficient. The basis should be made with a normative approach. Considering recent discussions on the acts of artificial intelligence, it can be argued that the concept of human acts should presuppose the capacity for responsibility. Lastly, I analyze Welzel’s finalism. Analyzing Welzel's view toward negligence and the meaning of finality, it becomes clear that his finalism should also presuppose the capacity to control acts which is a part of criminal capacity. Therefore, contrary to current beliefs, I conclude that those without criminal capacity cannot perform criminal acts.

ABSTRACT. Retributivists have in recent years re-discovered reactive attitudes and tried to build a justification of retributive punishment on top of them. Retributive theories of punishment claim that punishment is morally justified independent of any future benefits it might have, simply because it is deserved. In this paper, I want to take a closer look at three types of accounts that use reactive attitudes in order to defend retributive justice. The first account works with assumptions about human agency that are neglected if we fail to blame and punish offenders. If we do not respond with reactive attitudes towards offenders, we fail to take them seriously as moral agents. But we should take their moral agency seriously, so we should blame them. The second works by arguing that we have a duty to dissociate ourselves from (some) moral and legal wrongdoings. Thus, in order to dissociate itself from the wrongdoing, the state should impose retributive punishment. The third strategy works by invoking the fittingness or aptness of reactive attitudes such as anger or blame, especially as a response to structural injustice. I will argue in this paper that all of these arguments that invoke reactive attitudes are either viciously circular, rely on unsupported empirical claims about our human nature, or need to invoke the instrumentality of our reactive attitudes in order to be plausible. I especially invoke traditions of Stoicism and Buddhism to defend the claim that the retributivist’s insistence on the importance of reactive attitudes and their robustness is overstated. My criticism in a nutshell: Retributivists can, first, simply assume that certain blame and punishment practices are indispensable to adequately account for our moral agency and should thus be integrated in the criminal law; but this will of course be circular. Second, retributivists can ground the claim about how moral agency works more strongly in empirical observations. But philosophers typically simply assume that reactive attitudes are indispensable parts of our moral agency, without providing the necessary in-depth data for such a claim. Here, traditions of Stoicism and Buddhism come into play in offering alternatives to blame-based social relationships. Or third, they can bolster their argument in defense of blame on instrumental benefits of such a practice. This is the most plausible defense of reactive attitudes and retribution, I think, though it drops the non-instrumentality that it is supposed to have according to the authors.