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Anything New?

 
 
Ray
 
  1  
Reply Wed 22 Jun, 2005 02:02 pm
Quote:
are we talking about the one and the same chinese legal theorists here?


Probably not. I'm talking about the ancient one...
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pragmatic
 
  1  
Reply Thu 23 Jun, 2005 02:50 am
hahaha, confuscious? I disagree with many things he has said - especially about women.
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val
 
  1  
Reply Thu 23 Jun, 2005 02:53 am
pragmatic


Although I am not a positivist, I think Kelsen gave a major contribution to the Right in his "Reine Rechtslehre", with the separation between moral and right.
His conception of the right as a pyramid, with the Constitution on top (the Grundnorm), his insistance in considering the "positive right" as the existent law and not the law we wish that exists and, above all, the exigeance that juridical systems are interpreted from the "inside" and not regarding other aspects of culture, moral or politics, are in the base of modern european right, more perhaps, that american or british laws.
Perhaps he exagerated his idea of a juridical system as a closed system - that is always the major failure of positivism, as we see in the theories of language - but I don't think that his perspective leads necessarily to immobility.
Laws can be deeply changed, providing we change the all system, beggining with the fondamental law, the Constitution. Kelsen's idea of the imperative of coherency of the juridic system gives to those who have to deal with juridical problems the most sane way to interpret and apply the law, as far as possible from anything that is not part of that specific legal system.
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pragmatic
 
  1  
Reply Thu 23 Jun, 2005 02:56 am
I agree - it was clean, clear cut and conceptual, objective and applicable to any possible system in the world - but the Grundnorm is subject to much criticism (as you probably know.) I think the one big one is the fact that it is too fictional - but I have realised another potential problem is that it may be too circular, in regards to its method of recognition and validity of the "triangle" below it. But I would rather follow Kelsen than the natural lawyers, contemporary or historical as the latter have too many considerations, not to mention too confusing -I cannot understand John Finnis!
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val
 
  1  
Reply Thu 23 Jun, 2005 03:16 am
pragmatic


Quote:
but I have realised another potential problem is that it may be too circular, in regards to its method of recognition and validity of the "triangle" below it. But I would rather follow Kelsen than the natural lawyers, contemporary or historical as the latter have too many considerations, not to mention too confusing -I cannot understand John Finnis


Yes, you make a very good point. In fact, Kelsen theory was too closed, since right cannot be indifferent to other aspects of life: not only in the legislation but also in the application of the norms.
Some parts of the juridical system, like Criminal Right, Labour Right had an evolution that is not very compatible with Kelsen philosophy.
But it is in civil and processual right that Kelsen's influence can be still noticed in many juridical systems, no matter the fact that other influences - Carnelutti, for example - are more decisive.
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spendius
 
  1  
Reply Thu 23 Jun, 2005 05:34 am
Have there been any sort of major breakthroughs in Philosophy in the last 50 years or so?

It depends what is meant by "Philosophy".The upper case there suggests the formal body of people in institutions with that in their title.Nothing can be expected of them and they have,at least in that regard,not disappointed us despite the enormous sums of money and material assets utilised.They rely on cowing the population with an esoteric language and other ritualistic devices in a similar manner that shamans of old did in more primitive settings.The philosophers of the past have nothing to say to societies in which the generation and distribution of electricty, the uses of broadcasting and pharmaceuticals and materialist pychology are so advanced and widespread as to be beyond their understanding.Those philosophers spoke only to the societies in which they were socialised.

Further,the modern reader,in the main,of these out of date philosophers simply does not have the attention span to come to terms with the works involved.One has only to look at the internet philosophy fora to grasp that.

Philosophy as a subject rather than as a vested interest is now in the hands of specialists in technical fields and most of all politicians who are advised by these specialists.The concepts they are dealing with are so far over the heads of the general population,including institutionalised philosophers,that they may as well not have heads to go over.

A few months spent reading the diaries of Richard Crossman,a senior cabinet minister,is quite sufficient in itself to make the foregoing fairly obvious and that pertains to events over 40 years ago when television was in its innocent infancy.

Naturally,people do not like the idea that they don't know what is going on so one presumes they will find ways to pretend otherwise and continue to discuss archaic notions as one way to achieve this.
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Ray
 
  1  
Reply Thu 23 Jun, 2005 09:42 pm
Quote:
hahaha, confuscious? I disagree with many things he has said - especially about women.


Not quite. It was around the period though and I believe it was one of the schools of thought that arises in the Spring and Autumn or Warring States period.

This site mentions that he is one of the Confucianist philosopher (like the Socratics philosophers).
legalism

I really dislike their view of humanity. I think that they are mistaken. I believe that people are not born good or bad, but have the potential to be either one. Doesn't the ability to distinguish that something is bad or wrong and the ability to have a social understanding, not to mention compassion, equate to being good traits that are deeply a part of us?

About Confucius, I'm not sure about his view on women, is it as bad as Aristotle's? What I know is that he lives in a time of turmoil and what he taught is to my opinion, partly right and partly wrong. Rolling Eyes
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pragmatic
 
  1  
Reply Sat 25 Jun, 2005 07:18 pm
spendius wrote:
Have there been any sort of major breakthroughs in Philosophy in the last 50 years or so?

It depends what is meant by "Philosophy".


In my eyes, the issue is legal philosophy and theory.
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pragmatic
 
  1  
Reply Sat 25 Jun, 2005 08:15 pm
val wrote:
His conception of the right as a pyramid, with the Constitution on top (the Grundnorm), his insistance in considering the "positive right" as the existent law and not the law we wish that exists and, above all, the exigeance that juridical systems are interpreted from the "inside" and not regarding other aspects of culture, moral or politics, are in the base of modern european right, more perhaps, that american or british laws.


That only appears to be half of the story - my belief is if there is a norm (as there is in common law countries) allowing judges to take into account those considerations - then indirectly, Kelsen has allowed such aspects of culture, moral or politics etc etc to take place in the legal system, provided it follows his structure and there is a norm. But prima facie he would not allow his normative science to be disturbed by such considerations.
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pragmatic
 
  1  
Reply Sat 25 Jun, 2005 09:16 pm
Ray wrote:
I really dislike their view of humanity. I think that they are mistaken. I believe that people are not born good or bad,


just selfish - each person survives for themselves alone. and usually, that goes to doing bad, or at least not so good things.

Ray wrote:
About Confucius, I'm not sure about his view on women, is it as bad as Aristotle's? What I know is that he lives in a time of turmoil and what he taught is to my opinion, partly right and partly wrong. Rolling Eyes


Not quite sure what Aristotle promoted in this area, but Confucius, as much as his theory and teachings live on today, even in a very very modern China thrive as an essential and signifiacant part of all chinese lives, even in those who have been raised in a mainly western society (like me). So I have to respect him, but disagree with his low perspectives on women and their role in the family.

What did you find about him that was

Ray wrote:
partly right and partly wrong. Rolling Eyes


?
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Ray
 
  1  
Reply Sat 25 Jun, 2005 10:30 pm
Quote:
Not quite sure what Aristotle promoted in this area, but Confucius, as much as his theory and teachings live on today, even in a very very modern China thrive as an essential and signifiacant part of all chinese lives, even in those who have been raised in a mainly western society (like me). So I have to respect him, but disagree with his low perspectives on women and their role in the family.

What did you find about him that was


Aristotle holds that women were "incomplete" men.

Quote:
just selfish - each person survives for themselves alone. and usually, that goes to doing bad, or at least not so good things.


It's interesting though isn't it, that people would sacrifice their lives for others or for a cause?

Quote:
?


I don't agree with Confucius wanting to look back at the old days (that is the Zhou Dynasty). I also don't like him classifying merchants as the lowest class and having to always obey a superior's command.
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pragmatic
 
  1  
Reply Sat 25 Jun, 2005 10:34 pm
Ray wrote:
Aristotle holds that women were "incomplete" men.


right. Can't say I heard of that in the chinese perspective.

Ray wrote:
It's interesting though isn't it, that people would sacrifice their lives for others or for a cause?


Maybe you have just met some nicer people in your life than I have... Confused

Ray wrote:
I don't agree with Confucius wanting to look back at the old days (that is the Zhou Dynasty). I also don't like him classifying merchants as the lowest class and having to always obey a superior's command.


I am not familiar with Confucius in this area, more just his teachings in the circle of family.
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Ray
 
  1  
Reply Sun 26 Jun, 2005 06:11 pm
Quote:
right. Can't say I heard of that in the chinese perspective.


I've heard Plato has the opposite view of Aristotle. Read it in a book so can't be sure.

Quote:
Maybe you have just met some nicer people in your life than I have...


Maybe not. I've seen on the news, report of a person who saved a girl's life at the cost of his own. Many other things similar to that also. I think it is, biologically known, that mothers of many species would protect their young and care for them deeply.

I can't say that it justifies my view, but I believe that it is an error, to think of one's life as more valuable than another's.

Quote:
I am not familiar with Confucius in this area, more just his teachings in the circle of family.




Must admit that I'm not quite familiar myself. I don't agree with him holding family as a priority though. Not to say that I don't think that we should appreciate our family, but that if a family member tells you to do something that is harmful to others, I don't think you should do it.
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Thalion
 
  1  
Reply Sun 26 Jun, 2005 06:33 pm
This is refering back to page 1, but I just looked at the thread now.

Cyracuz - reminds me almost of The Sound and the Fury. "Fui. Non sum."
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pragmatic
 
  1  
Reply Tue 28 Jun, 2005 05:39 pm
Ray wrote:
Must admit that I'm not quite familiar myself. I don't agree with him holding family as a priority though. Not to say that I don't think that we should appreciate our family, but that if a family member tells you to do something that is harmful to others, I don't think you should do it.


I don't know that Confucious ever advocated the last point you mentioned - but in regards to holding family as a priority in general - this has survived up to this day. Children are to respect their elders and not question any decisions and it is a crime in some areas of China to abandon your parents when they are old - you are legally obliged to look after your parents when you get married.

I know some of my non asian friends find it confusing that asian parents are reluctant to allow their children to move out - they ask why we don't allow them some streak of independence. But its not so much independence or not, rather that we respect family and should stay together as much as possible. We have a phrase - only staying together will make everyone stronger - and we don't mean it in the context of trade unions. Laughing
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