Interpretive Disputes Research Articles

손해배상에 관한 민법 개정 예비초안 검토

This article introduces and reviews the content of the preliminary draft prepared by the Civil Code Amendment Committee, established in June 2023. The focus is on the amendments related to damages in Chapter 1, Section 2 of Part III of the Civil Code, which deals with the effectiveness of obligations. Specifically, it examines the proposed revisions to Article 390 (Non-performance of Obligations and Damages), Article 393 (Scope of Damages), Article 394 (Method of Compensation for Damages), Article 396 (Comparative Negligence), Article 397 (Special Provisions for Monetary Debt Default), Article 398 (Liquidated Damages), and the newly proposed Article 395-2 (Reimbursement of Expenses). The primary perspective for this review is to ensure the continuity and connection of discussions on the amendment of the Civil Code by comparing it with the 2004 amendment proposals and the 2013 revision draft. Additionally, in order to enhance the efficiency of the discussions, the review will focus on the modifications in the preliminary draft compared to previous amendments, as well as the alternatives proposed by the review committee. This review will be conducted with reference to domestic legal theories, precedents, and foreign legislative examples from a legislative standpoint. From a practical perspective, the most crucial aspect of the current Civil Code revision is to codify established doctrines and case law to prevent further interpretive disputes and clarify legal expressions. Particularly, as in the case of the preliminary draft concerning the regulations on damages, where the abstract nature of the Civil Code provisions has led to the resolution of cases through interpretation, codifying established case law can enhance predictability. However, in the process of codifying case law, it is necessary to consider whether such codification may hinder the development of legal principles through interpretation by fixing the doctrines in a manner that could affect the future evolution of legal theories and case law.

Character development over happiness: the aesthetic foundation of John Stuart Mill’s philosophy of education

Abstract Despite the many interpretive disputes regarding John Stuart Mill’s philosophy of education, there is wide agreement that Mill saw education as the most necessary and significant means of promoting human happiness. I challenge this view by claiming that Mill belongs to a broad philosophical trend of his time that rejected the conception of human nature that stands at the foundation of the modern ideal of happiness according to which human freedom is expressed in the autonomous pursuit of self-satisfaction. Instead, he embraced an understanding of humans as unique beings whose freedom is expressed in the development of original characters. I argue that the change in Mill’s perception of truth that occurred during his mental crisis led him to understand these processes as open—they are not subject to any static or universal purpose since freedom is understood as the ability of individuals to alter their purposes according to the internal changes they experience. My claim regarding the negation of happiness in Mill’s thought provides an answer to the question, largely neglected in the literature, of why, unlike many thinkers associated with the tradition to which he belonged, he chose not to elucidate the operative steps necessary to promote happiness in a book dedicated to education. I conclude by claiming that his use of the utilitarian lexicon is not accidental and does not reveal internal contradictions, but is a tactical move intended to enable the optimal conditions for creating significant change in people.

The Application of Hermeneutics in Indonesia as a Koranic interpretation Method

An examination of the interpretation of the Koran that elicits contentious topics in the contemporary post-modern era is a fascinating subject to explore. Hermeneutics, which originated in Ancient Greece, has been included in the process of understanding the Koran, as discussed in this article. A discussion ensued concerning the advent of the hermeneutical approach when employed in the interpretation of the Koran. Is it possible to employ a hermeneutical methodology for the interpretation of the Koran? Hermeneutics provides a solution to contemporary interpretive disputes by offering a systematic and comprehensive approach to understanding and interpreting texts. In this inquiry, the author analyzes multiple perspectives on hermeneutics held by interpretive figures in Indonesia. This article highlights the importance of science as a catalyst for change in the contemporary era, emphasizing that it should not be disregarded or dismissed. In its pursuit of scientific advancement, it consistently adapts to contemporary knowledge and practices. However, it also remains grounded in ancient traditions, specifically by referring back to the Quran and Hadith.

Hermeneutics of Heraclitus

The article considers the philosophical potential of Heraclitean ambiguity and implications for how one might engage philosophically with Heraclitus. While works on Heraclitus most commonly offer new interpretations or dispute or add nuance to established interpretations, this work somewhat sidesteps interpretive disputes to consider the philosophical value and relevance of Heraclitus’s fragments themselves. Specifically, a hermeneutical tool proposed by William Desmond called a “companioning approach,” is supported. Desmond’s companioning approach is considered in the context of Pierre Hadot’s account of the history of hermeneutical practices to show that it merely defines and legitimizes a longstanding hermeneutical activity. Further, a recent work by A. V. Halapsis shows that Heraclitus’s ambiguity may have been a consequence of his anthropological commitments and that he may have intended to allow for something like a companioning engagement.

Hobbes on the power to punish

ABSTRACT Hobbes’s account of the sovereign’s right to punish in Leviathan has led to a longstanding interpretive dispute. The debate is prompted by the fact that, prima facie, Hobbes makes two inconsistent claims: subjects (i) authorize all the acts of the sovereign, and are hence authors of their own punishment, yet (ii) have the liberty to resist such punishment. I argue that attending to Hobbes’s surprisingly neglected account of power yields a novel interpretation of his theory of punishment. Hobbes, it turns out, is working with two conceptions of power: potestas, a juridical power, and potentia, a factual power. Each power grounds one of the ‘inconsistent’ claims above: potestas founds the authorized condemnation by the legal system, and potentia the factual enforced penalty, which is not directly authorized and can be resisted.

The Cost of Maintaining a Fire Station Transferred to the Volunteer Fire Department by the Local Municipality on a Loan Basis

Cel: The aim of the article is to answer the question whether the municipality or the volunteer fire department bears the normal maintenance costs of the property transferred by the municipality to the volunteer fire department through a lending agreement for the fire station. The purpose formulated in such a manner assumes that the building transferred to the volunteer fire department is the property of the municipality. This is the situation in most municipalities in Poland. Volunteer fire departments owning a fire station are a rarity in Poland. Related to the main problem are specific problems, such as the situation of TSO properties in Poland, the cost of maintaining lending real estate, the cost of maintaining volunteer fire departments, and taxation of volunteer fire departments’ properties. Projekt i metody: The study uses traditional scientific methods within the legal science such as the dogmatic-legal method, the hermeneutic method, and the argumentative method. Wyniki: The municipality bears the usual costs of maintaining the properties transferred to the TSO by the municipality through a free lending agreement for the needs of a fire station. This is due to the article 713 of the Civil Code, which is relatively binding and can be excluded from application through contractual arrangements between the municipality and the TSO. In such a case, ordinary maintenance costs in the form of expenses and expenditures necessary to maintain a fire station in a condition as it was before the conclusion of the agreement, i.e. mainly the costs of maintenance, minor repairs and renovations, the costs related to the use of the premises will be borne by the municipality. Concluding an agreement for lending the fire station by the municipality and TSO also removes the obligation to pay the real estate tax (fire station) by the volunteer fire department. The results of the article allow to sort out the relationship between municipalities and volunteer fire departments in Poland in the area of concluding agreements on lending fire stations, which in many municipalities have remained neglected and improperly formed for many years, as indicated, among others, in the report of the Supreme Chamber of Control in 2019 on the financing of volunteer fire departments. Wnioski: Postulate de lege ferenda can be made, that in order to avoid interpretation disputes related to the interpretation of article 713 of the Civil Code, it would be reasonable to amend the provisions of the Act on Volunteer Fire Departments. It would be worth including a provision that when a municipality lends property to a TSO for a fire station, all maintenance costs, including ordinary costs, are borne by the municipality and article 713 of the Civil Code does not apply in this case. Słowa kluczowe: volunteer fire department, fire protection, municipal government, public finance, maintenance costs of the fire station, lending of the fire station

A new present? The interpretive dispute about historical time, Chile 2019—2021

This article deals with the discussions about historical time as a way of getting into political subjectivity and its collective consciousness, in order to address the problems of the present and future that arose from the socalled “outbreak” or “social outburst” of October 18th, 2019. The time dimension is the key to understand the perception of the social welfare and its absence. In spite of it, very little attention has been paid to the subject from political perspective in recent history. The article aims at putting into scientific circulation a great bunch of sources in which modern chrono political discussions and confrontations can be found.

Does Every Genuine Philosophy Have a Skeptical Side?

Does Every Genuine Philosophy Have a Skeptical Side? Michael Neil Forster I have spent a number of years now mining Hegel’s writings for insights into skepticism. 1 Among those that I have identified and broadly endorsed, the following three are perhaps most important: (1) Hegel argues convincingly that ancient skepticism and modern skepticism are sharply different in character (ancient skepticism being typified by the general method of “equipollence,” or arguing with equal plausibility on both sides of each question, modern skepticism instead by such specific problems as the “veil of perception” problem), and that as a result ancient skepticism is philosophically superior to modern, in particular because free of an essential dogmatism, and resulting vulnerability to skepticism, that afflict the latter and blessed with a sort of generalness of applicability that the latter lacks.2 (2) Hegel argues, in opposition to Kant and other philosophers influenced by him, such as Gottlob Ernst Schulze, who conceive ancient skepticism as limited in the scope of its attack, that, on the contrary, ancient skepticism is a radical position that attacks all beliefs. This interpretive dispute has recently been replayed at a high philological and philosophical level by Myles Burnyeat and Michael Frede, respectively. I have argued that it is the radical Hegel-Burnyeat reading of ancient skepticism rather than the moderate Kant-Frede reading that is more exegetically correct.3 (3) [End Page 219] Hegel argues, again in opposition to Kant and those influenced by him, that such a radical form of ancient skepticism is, moreover, philosophically viable. In particular, he argues that it can plausibly attack even judgments of subjective experience and logical principles. I have argued that on this point too Hegel is correct.4 In the present article I would like to identify and defend a fourth important Hegelian insight into skepticism: a thesis he articulates in his seminal essay The Relation of Skepticism to Philosophy: A Presentation of Its Various Modifications and a Comparison of Its Newest Form with Its Ancient from 1802, to the effect that every genuine philosophy has a skeptical side—or, as he puts it there, “that skepticism itself is most intimately one with every true philosophy . . . that a true philosophy necessarily itself . . . has a negative side.”5 I In order to appropriate and defend this Hegelian thesis, I first need to clarify and disambiguate it in certain ways. In particular, the following three points should be noted. First, as Hegel articulates the thesis in his 1802 essay, it is often concerned with “true philosophy” in the very narrow sense of “philosophy that is true”—which would restrict the bearing of the thesis to just his own philosophy and a few alleged anticipations of it by favored predecessors such as Plato. On the other hand, in the very context of the remarks that were quoted above, Hegel rejects the idea that philosophy should be equated with dogmatism, and he implies that it also includes a broad range of skeptically minded thinkers, among them not only Plato but also certain poets, Xenophanes, Zeno, and Democritus.6 Moreover, at other points in the essay he identifies Pyrrho and the older set of Pyrrhonian tropes, or methods for bringing about suspension of judgment, as examples of philosophy as well.7 So there [End Page 220] are also good textual grounds for construing “true philosophy” in his thesis in the broader sense, not of “philosophy that is true,” but of something more like “genuine philosophy” (whether true or not). While the former, narrow sense of his thesis is undeniably present in the essay, I do not find it very philosophically promising and shall therefore simply set it aside here. It is the latter, broader sense of the thesis that seems to me to have good prospects of being correct, and that interests me here. Second, somewhat surprisingly, Hegel in the 1802 essay identifies as the paradigm of “skepticism” the second half of Plato’s Parmenides— which he interprets as a destructive dialectic both preparatory and integral to Plato’s positive philosophy (very much as his own destructively dialectical Logic was at this early period of his career both preparatory and integral to his own positive philosophy). However, Hegel...

“I didn't mean to suggest anything like that!”: Deniability and context reconstruction

Verbal communication leaves room for interpretative disputes. Speakers can argue about what they mean by their words and negotiate their commitments in conversation. This article examines the deniability of implicitly communicated contents and addresses the question of what makes an act of denial seem more or less plausible to the addressee. I argue that denials bring about a process of reconstruction of the context of interpretation of the speaker's utterance and I illustrate how considerations of cognitive utility are the key determinant for distinguishing plausible from merely possible deniability.

Critical comments to the bill on protection of the rights of purchasers of residential premises or single-family houses and on the Developer Guarantee Fund

The article presents reflections on the bill on the protection of the rights of a purchaser of residential premises or a single-family house and on the Developer Guarantee Fund, Parliamentary printed matter no. 985. According to the bill drafter, the proposed changes are a response to “bankruptcies of property developer businesses and related financial losses of those who have purchased residential premises or houses through these businesses”. A number of provisions of the Act, the structure of which remains unclear, give rise to numerous interpretation disputes and significantly undermine the certainty of legal dealings. Firstly, there is no regulation regarding the supervision of the developer guarantee fund and its legal status. The regulation regarding the developer guarantee fund is scarce compared to that of the Bank Guarantee Fund, thus leaving significant room for abuse. Secondly, the bill is significantly defective in its lacking any method for calculating the contribution depending on the level of risk of a given developer going bankrupt. All entities are to be subject to the same contribution.

Nietzschean Autonomy and the Meaning of the “Sovereign Individual”*

AbstractThis paper has two goals, one narrower and one wider. The limited goal is to address an interpretive dispute over the Genealogy’s description of the “sovereign individual,” a character type whose features bear on Nietzsche’s distinctive conceptions of conscience, promising, and what it is to take responsibility for oneself. The wider goal is to characterize Nietzschean autonomy. The basic idea is that the meaning of the sovereign individual emerges clearly in light of a distinction from Bernard Williams between two senses of responsibility—one tied to voluntary action, the other to an ambitious conception of responsible agency. What we learn from Williams about responsibility then illuminates Nietzschean autonomy, which is understood as a matter of overcoming psychological weakness by unifying the self.

Causation and Cognition in Early Modern Philosophy ed. by Dominik Perler and Sebastian Bender

Reviewed by: Causation and Cognition in Early Modern Philosophy ed. by Dominik Perler and Sebastian Bender Nick Westberg and Jean-Luc Solère Dominik Perler and Sebastian Bender, editors. Causation and Cognition in Early Modern Philosophy. Routledge Studies in Seventeenth-Century Philosophy. New York: Routledge, 2020. Pp. vi + 361. Cloth, $112.00. This volume is a welcome addition to early modern scholarship, providing a source of reflection on the connection between cognition theory and causation theory. The collection's great merit is exploiting this cognition-causation connection to provide a new avenue for historical research that is at the same time philosophically significant. Several of the essays advance our understanding of key figures by using this connection to settle longstanding interpretive disputes. (Besides those detailed in the present paragraph, the excellent pieces by Julia Jorati on Leibniz, Sebastian Bender on Berkeley, and Martine Pécharman on Hobbes also fall under this heading.) For instance, in "Descartes on the Causal Structure of Cognition," Alison Simmons rejects both the concurrentist and the occasionalist readings and argues that Descartes, in fact, does not endorse any view about the metaphysics of causation. Instead, he is more interested in showing the success of mechanism. Mechanistic physics can account for all the bodily interactions that lead up to perception. Thus, philosophers may dispense with the Aristotelian assimilation thesis and its underlying physics. In "Knowing Mind through Knowing Body," Daniel Garber provides an answer to the "Pancreas Problem" in Spinoza scholarship. Awareness is distinguished from mere perception, which may be not conscious. Moreover, awareness results from the body's interaction with an external body, whereas (unconscious) perception does not require such interaction and can be purely internal. This helps explain Spinoza's criticism of Descartes's cogito argument. By extension from the definition of awareness, self-consciousness—that is, the idea of the idea of one's body—depends upon interaction with external bodies. So, one cannot separate self-consciousness from causal relations with the external world. Peter Kail likewise uses the cognition-causation connection to engage a longstanding debate, defending the view that David Hume is not a radical skeptic. He argues that Hume's criticism of causation only precludes one sense in which the mind is a cause of inferences, that is, the sense in which it deductively infers. Hume instead treats reason as a reliable mechanism that leads us to nondeductive inferences. Other essays use the cognition-causation connection not to wade into perennial scholarly disputes, but rather to open up historical inquiry to lesser-known philosophers. These figures are often taken to be minor on account of their quirky positions. But this collection reveals that an unorthodox position in one domain (causation or cognition) is often the result of a unique thesis defended in the other. For instance, in "Nothing Is Simply One Thing," Julia [End Page 688] Borcherding shows that Anne Conway advances her non-unitary theory of mind because she significantly alters Descartes's account of change. Likewise, in "Cartesian Causation and Cognition," Tad Schmaltz argues that Géraud de Cordemoy embraces occasionalism about the mind's perceptions because he reasons that Cartesian metaphysics renders causation between finite substances impossible. Again, Dominik Perler, in "Suárez on Cognition and Causation," illuminates Suárez's unorthodox view of the intellect as a coordinated efficient cause of ideas. He shows that Suárez's view is a last-ditch attempt within Aristotelianism to replace a failed assimilation thesis. The pieces by Sarah Hutton on Cudworth, David Cunning on Cavendish, and Han Thomas Adriaenssen on John Sergeant and Antoine Le Grand fall in the same group of essays that explore lesser-known figures. The excellent contributions of Martin Lin on Spinoza's causal axiom, Stephan Schmid on Malebranche, and James Van Cleve on Reid form a third group. Not only are they analytically thorough, but they also bring illuminating contemporary analysis to bear on this collection's theme. The collection is not without its issues. For one thing, the pieces do not fit together as a cohesive whole. This is due to the broad scope of figures (eighteen philosophers, spanning divergent perspectives from about 1600 to about 1750) and the differing interpretive methods. The...

Genentech, Inc. v. Immunex Rhode Island Corp. United States Court of Appeals of the Federal Circuit, 2020 964 F.3d 1109

Genentech, Inc. v. Immunex Rhode Island Corp. United States Court of Appeals of the Federal Circuit, 2020 964 F.3d 1109

Morality and mortality: The dialogical interpretation of Psalm 90 in the book of Job

This article identifies dialogical interpretation in Job as a form of aggadic inner-biblical exegesis. Job and the friends frequently attack each other through allusions to each other’s words. This interpretive dispute spreads into their allusions to other texts, which are drawn into the dialogue and caught up in the conflict. Job and the friends frequently interpret these texts differently, capitalizing on their tensions and manipulating them into weapons in their debate. Ps. 90, with its ambiguous presentation of specific and universal referents, God as deliverer and destroyer, and human transience as punishment and grounds for pity, becomes one of these weapons. While the friends appeal to the psalm to urge Job from complaint to confession, Job incorporates it into his divine confrontation. By depicting this contentious dialectic between his characters’ interpretations, the Job poet produces a meta-interpretation that represents the psalm’s conflicted advocation for sufferers courageously to confront God.

Interpretative Disputes with Regard to Provisional Measures at the ICJ: Is There a Normative Gap?

Abstract Recently, the International Court of Justice dealt with a request to interpret provisional measures previously indicated in the Ukraine v. Russian Federation case. However, the Court never disclosed its official position on the request, but reportedly limited itself to reaffirming the binding nature of its previous Order. The present contribution aims at analyzing from a general point of view whether the ICJ would be ready to settle interpretative disputes that arise with regard to the meaning and scope of provisional measures already indicated. Despite several paths that could be envisaged in theory, only one of them seems to be suitable to reach that goal.

Automation in contract interpretation

ABSTRACTThis paper investigates whether the process of contract interpretation (also described as contract construction) can be automated. It approaches the task in two stages. The first part explains contract interpretation as a cognitive process. It demonstrates that interpretation involves: (i) the identification of arguments in favour of each interpretation; and (ii) the weighing and balancing of arguments to arrive at the construction that was probably intended. The second part of the paper explores the extent to which the process can be automated by logical design or through machine learning. It demonstrates that manual programming and data analytics can automate the interpretive process in different ways and to different extents: a machine can be manually programmed to formulate some interpretive arguments; relevant interpretive information can be identified, classified and extracted through machine learning; and data analytics can be applied to recognise argument patterns in interpretive disputes.

William of Ockham, Andrew of Neufchateau, and the Origins of Divine Command Theory

William of Ockham is often thought to be the medieval progenitor of divine command theory (hereafter DCT). This paper contends that the origin of a thoroughgoing and fully reductive DCT position is perhaps more appropriately laid at the feet of Andrew of Neufchateau. We begin with a brief recapitulation of an interpretive dispute surrounding Ockham in order to highlight how there is enough ambiguity in his work about the metaphysical foundations of morality to warrant suspicion about whether he actually stands at the origin of DCT. We then show how all such ambiguity is jettisoned in the work of Andrew, who explicitly rejects a position similar to one plausibly attributable to Ockham and also articulates a fully reductive DCT.

Symmetry's Mandate: Constraining the Politicization of American Administrative Law

Recent years have seen the rise of pointed and influential critiques of deference doctrines in administrative law. What many of these critiques have in common is a view that judges, not agencies, should resolve interpretive disputes over the meaning of statutes—disputes the critics take to be purely legal and almost always resolvable using lawyerly tools of statutory construction. In this Article, I take these critiques, and the relatively formalist assumptions behind them, seriously and show that the critics have not acknowledged or advocated the full reform vision implied by their theoretical premises. Specifically, critics have extended their critique of judicial abdication only to what I call Type I statutory errors (that is, agency interpretations that regulate more conduct than the best reading of the statute would allow the agency to regulate) and do not appear to accept or anticipate that their theory of interpretation would also extend to what I call Type II statutory errors (that is, agency failures to regulate as much conduct as the best reading of the statute would require). As a consequence, critics have been more than willing to entertain an end to Chevron deference, an administrative law doctrine that is mostly invoked to justify Type I error, but have not shown any interest in adjusting administrative law doctrine to remedy agencies’ commission of Type II error. The result is a vision of administrative law’s future that is precariously slanted against legislative and regulatory action. I critique this asymmetry in administrative law and address potential justifications of systemic asymmetries in the doctrine, such as concern about the remedial implications of addressing Type II error, finding them all wanting from a legal and theoretical perspective. I also lay out the positive case for adhering to symmetry in administrative law doctrine. In a time of deep political conflict over regulation and administration, symmetry plays, or at the very least could play, an important role in depoliticizing administrative law, clarifying what is at stake in debates about the proper level of deference to agency legal interpretations, and disciplining partisan gamesmanship. I suggest that when the conversation is so disciplined, an administrative law without deference to both Type I and Type II error is hard to imagine due to the high judicial costs of minimizing Type II error, but if we collectively choose to discard deference notwithstanding these costs, it would be a more sustainable political choice for administrative law than embracing the current, one-sided critique of deference.

Aquinas and Scotus on the Metaphysical Foundations of Morality

This paper retraces some of the contrast between Aquinas and Scotus with respect to the metaphysical foundations of morality in order to highlight how subtle differences pertaining to the relationship between the divine will and the divine intellect can tip a thinker toward either an unalloyed natural law theory (NLT) or something that at least starts to move in the direction of divine command theory (DCT). The paper opens with a brief consideration of three distinct elements in Aquinas’s work that might tempt one to view him in a DCT light, namely: his discussion of the divine law in addition to the natural law; his position on the so-called immoralities of the patriarchs; and some of his assertions about the divine will in relation to justice. We then respond to each of those considerations. In the second and third of these cases, following Craig Boyd, we illustrate how Aquinas’s conviction that the divine will follows the ordering of the divine intellect can help inform the interpretive disputes in question. We then turn our attention to Scotus’s concern about the freedom of the divine will, before turning to his discussion of the natural law in relation to the Decalogue as a way of stressing how his two-source theory of the metaphysical foundations of morality represents a clear departure from Aquinas in the direction of DCT.

Arguing Over Texts: The Rhetoric of Interpretation

Arguing Over Texts: The Rhetoric of Interpretation