ニクラス・ルーマン「道徳のコード」

『社会の法〈1〉 (叢書・ウニベルシタス)』第２章注70。
きょうもひとさまに複写していただいた論文をありがたく読みますよm_(. _ .)_m

Niklas Luhmann (1993) "The code of the Moral," Cardozo Law Review 14 (1993), p.995-1009
http://www.cardozolawreview.com/PastIssues.asp?VolumeID=40

こっちでもアベラール（isbn:4582734170）を巡ってバーマン（asin:0674517768）が参照されておりますな[p.1001]。
いつものことながら、参照するときにページを挙げないのは勘弁してほしいよ。

バーマン本、事項索引がないんだよなぁ（泣

まぁおそらく第１部第３章（ヨーロッパの大学における西欧法学の起源）あたりなんでしょうが。

The interiorization of the moral that began in the Middle Ages is likely to have been decisive for this differentiation [of a specifically moral semantics]. Since Peter Abelard's Ethics, moral judgement has been related to the question whether the individual has inwardly concurred or not in the goodness or badness of his or her actions.¹⁹ In this process, the fundamental distinction of goodlbad was presupposed, in the first instance, as the subject matter of agreement, but was supercoded in the distinction of good/evil.

This led to complicated problems that the moral casuistry of confessional practice sought to solve in a quasi-juridical manner until traditional ethics exploded in the seventeenth and eighteenth centuries.
A few of the unsolvable problems include the following:

the question of whether communication can be understood;

the incommunicability of the authenticity and sincerity of one's own intentions;

and the beneficent consequences of malevolent designs,²⁰ or,

conversely, the maleficent consequences of benevolent intentions.21

These problems led ethics to constitute itself anew as an academic discipline concerned with laying the foundations for moral judgments.

19 See PETER ABELARD'S ETHICS (D.E. Luscombe ed. & trans., Clarendon Press 1971). This issue is raised formally in the context of a definition of the concept of sin. For God cannot be injured through damaging behavior, but only through the Dei contemptus that is manifested in concurrence with that damaging behavior (quod non canvenit). Id. at 55-67. It may be a coincidence, which nevertheless should attract our attention, that the differentiation of a specifically legal culture arose simultaneously, namely, in the late eleventh century. See HAROLD J. BERMAN, LAW AND REVOLUTION: THE FORMATION OF THE WESTERN LEGAL TRADITION (1983). Since then, the European tradition has attached great importance to the nonidentity of law and morals in a manner that is unique in the world, which ultimately derives from the fact that the legal code was in a position to differentiate a distinct functional system for law, which the moral code was not able to do.