- I have argued for this point in T Inoue, Kyosei no Saho: Kaiwa toshiteno Seigi [Decorum of Conviviality: Justice as Conversation] (Tokyo, Sobunsha, 1986), 10–22.
- For a further discussion of this point, see T Inoue, “Nanno tameno Ho no Shihai ka? Ho no Tososei to Seitosei” [Why Should We Care About the Rule of Law? The Agonisticity and Legitimacy of Law], in Nihon Hotetsugakukai [The Japan Association of Legal Philosophy] (ed), Hotetshugaku Nenpo 2005: Gendai Nihon Shakai niokeru Ho no Shihai—Rinen, Genjitsu, Tenbo [The Annals of Legal Philosophy 2005: The Rule of Law in Contemporary Japanese Society—Ideal, Reality and Perspective] (Tokyo, Yuhikaku, 2006), 61–63.
- See C Schmitt, Verfassungslehre, (Berlin, Duncker & Humblot, 8th edn, 1993).
- See T Miyazawa, Kenpo no Genri [The Principles of the Constitution] (Tokyo, Iwanami Shoten, 1967), 375–423.
- See B Ackerman, We the People 1: Foundations (Cambridge, MA, Harvard University Press, 1991).
- For a development of this criticism of the pre-commitment theory, see J Waldron, Law and Disagreement (Oxford University Press, 1999), 255–81.
- For an example of this argument see J Rubenfeld, “Legitimacy and Interpretation,” in L Alexander (ed), Constitutionalism: Philosophical Foundations (Cambridge University Press, 1998), 194–234. Joseph Raz rejects the stipulation of diachronic identity of different generations when he argues that the authority of the constitution-making generation cannot sustain the authority of the constitution over later generations. See J Raz, “On the Authority and Interpretation of Constitutions: Some Preliminaries“, in Alexander (ed) ibid, 152–93.
- J Rawls, Political Liberalism (New York, Columbia University Press, 1993).
- J Rawls, A Theory of Justice (Cambridge, MA, Harvard University Press, 1971), 126–30 et passim.
- Waldron, supra, n 6, 102–05, 149–63 et passim.
- Ibid, 211–312; J Waldron, The Dignity of Legislation (Cambridge University Press, 1999), 1–35 and 124–66.
- Waldron, supra, n 6, 298–301. The quoted phrase is on page 300.
- Ibid, 306–12.
- R Dworkin, A Bill of Rights for Britain (London, Chatto & Windus, 1990).
- T Campbell, “Legislating Human Rights“, in L J Wintgens (ed), The Theory and Practice of Legislation: Essays in Legisprudence (Aldershot, Ashgate, 2005), 219–38.
- R Dworkin, Taking Rights Seriously (Cambridge, MA, Harvard University Press, 1978), 279–90.
- R Dworkin, Law's Empire (Cambridge, MA, Harvard University Press, 1986), 225–75.
- Ibid, 186–224.
- R Dworkin, Justice in Robes (Cambridge, MA, Harvard University Press, 2006), 251–59.
- Dworkin, supra, n 16, 81–130; R Dworkin, “No Right Answer?” in P M S Hacker and J Raz (eds), Law, Morality, and Society: Essays in Honour of H L A Hart (Oxford University Press, 1977), 58–84.
- Stephen Perry indicates the utopian character of Dworkin's theory of political obligation on the ground that equal concern as the condition for associative obligation is too demanding a moral requirement for any actual political society to meet. See S Perry, “Associative Obligation and the Obligation to Obey the Law”, in S Hershovitz (ed), Exploring Law's Empire: The Jurisprudence of Ronald Dworkin (Oxford University Press, 2006), 183–205. But the source of its utopian character, as I see it, is not that it is morally too demanding but that it is socially or politically too demanding in presupposing the homogeneity and convergence of the conceptions of justice in the community of principle.
- For the elucidation of the strong normative implications of the universalistic idea of justice see T Inoue, Ho toiu Kuwadate [Law's Project] (Tokyo, The University of Tokyo Press, 2003), chapters 1 and 9.
- This idea is a reconstruction of the ethics of deference expounded by Philip Soper from my justice-based perspective. See P Soper, The Ethics of Deference: Learning from Law's Morals (Cambridge University Press, 2002).
- T Inoue, “The Rule of Law as the Law of Legislation“, in L J Wintgens (ed), Legislation in Context: Essays in Legisprudence (Aldershot, Ashgate, 2007), 55–74.
- L L Fuller, The Morality of Law (New Haven, Yale University Press, 1969), 95–151.
- Ibid, 33–94.
Legisprudence
Volume 3, 2009 - Issue 1