<論説>H. L. A. ハートの法理学における権利と法的権能についての一考察

概要

論文の詳細を見る
The notion of "Rights" is the most important and fundamental conception of modern European jurisprudence. In 1975,Professor Dr. Masaharu Maeda, to whom I would dedicate this essay, found that there were at least two translations of this notion into Chinese letters in the early days of Meiji era. According to him, some radical writers translated this notion into the combination of two Chinese letters, "Power" and "Reason." On the other hand, in most of documents of Meiji Imperial Government this notion was translated into the combination of two Chinese letters, "Power" and "Advantage". We should remember that some radical writers at that time were influenced by J. Locke or J. J. Rousseau. On the other hand, some conservative writers were influenced by J. Bentham and J. S. Mill. But the semantic connection between their translations and their legal ideas is not so clear. And moreover the relation between "Rights" and "Powers" is a difficult question even in contemporary European jurisprudence. In this essay I shall attempt to examine professor Hart's notions of "Rights" and "Legal Powers." And I shall attempt to show that his notion of "Rights" has developed especially since the early days of 1970's. My conclusion is that he has not yet succeeded in reconciling "will theory" to "beneficiary theory".
関西学院大学の論文
1981-12-30