法哲学年報
Print ISSN : 0387-2890
山田・乎野・亀本報告へのコメント実定法学の立場から
道垣内 弘人
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ジャーナル フリー

2007 年 2006 巻 p. 128-133,263

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What are the characteristics of legal thinking is a fundamental but difficult problem to answer in legal sciences, including philosophy of law, even if we focus on the way of the interpretation of statutory laws. However, at least, we might say that to keep the consistency of law is one of the most important requirements in the interpretation.
What to evade is not only the apparent contradiction in the interpretation but the hidden conflict of different principles, for example, liberalism, libertarianism, paternalism and so on, when we cannot justify the coexistence of principles by the difference of situations. In this context, philosophy of law works as a supplier of tools for analyzing the hidden principles behind legislation, cases and statutory interpretation by academics. The education of philosophy of law as a tools-supplier might have three stages.
1) To teach the principles themselves (e. g. justice theories).
2) To teach the way of analysis.
3) To discuss the relative merits of principles.
However, too much emphasis of the importance of philosophy of law sometimes drive the students to settle the cases on the principle which they believe in, without paying attention to the possibility of making other contradiction in the whole system of law.
Legal thinking is a restrictive one in the sense that they should respect the firmly established rules.

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