伯爾曼世界共同法理論探究
發(fā)布時(shí)間:2019-06-03 16:31
【摘要】:隨著經(jīng)濟(jì)全球化的不斷深入,國家之間的交往愈加密切,建立于經(jīng)濟(jì)基礎(chǔ)之上的各國法律文化的交流也越來越頻繁,這使得法律的發(fā)展趨向世界化、全球化。美國法學(xué)家伯爾曼對(duì)此種現(xiàn)狀進(jìn)行了描述并且以自己的一套獨(dú)特理論向世人們展現(xiàn)出了一幅美好的世界圖景,由此而產(chǎn)生了伯爾曼世界共同法理論。 伯爾曼是當(dāng)代西方著名的法學(xué)家,他的法學(xué)思想充滿了對(duì)現(xiàn)實(shí)的關(guān)懷和對(duì)未來的祈望,他的法學(xué)理論豐富深刻,別具一格。本文試圖沿著伯爾曼理論的一般邏輯簡(jiǎn)單勾勒出他法學(xué)思想中的世界共同法理論。單從邏輯角度來看,伯爾曼的世界共同法理論最先是以一種西方社會(huì)“危機(jī)”背景為起點(diǎn)的,通過對(duì)這種危機(jī)的化解經(jīng)由對(duì)西方法律傳統(tǒng)的恢復(fù)、思想領(lǐng)域內(nèi)的革新、綜合法學(xué)的建立及辯證統(tǒng)一的法律與宗教制度體的形成最終使世界共同法得以誕生。伯爾曼所在時(shí)代的世界法有著一定的特征和現(xiàn)實(shí)基礎(chǔ),也有其所面臨的諸多困境,伯爾曼運(yùn)用其獨(dú)特的世界觀與方法論來解釋共同法發(fā)展的軌跡并試圖解決其面臨的困境。在談到具體構(gòu)造世界共同法時(shí),伯爾曼又提出了一系列的方法和措施,力求從最根本上解決阻礙世界法產(chǎn)生和發(fā)展的諸多問題。這些舉措具體包括重塑一個(gè)能引導(dǎo)世界法發(fā)展的西方法律傳統(tǒng),破除思想“二元論”主義,法學(xué)教育領(lǐng)域的改革以及建立一個(gè)一體化的綜合法學(xué)理論。在提出這些解救措施之后,伯爾曼最終強(qiáng)調(diào)的是將法律與宗教辯證的綜合起來,,并以這種辯證綜合的制度體為未來的世界共同法提供制度與信仰體系,從而使世界法健康發(fā)展并逐步完善。伯爾曼世界法理論是有其內(nèi)在依據(jù)的,然而,通過認(rèn)真研讀伯爾曼有關(guān)世界共同法的諸多相關(guān)理論,也能夠找到值得反思的問題,諸如西方社會(huì)法律的危機(jī)是否真的是一種災(zāi)難性的危機(jī)?這種危機(jī)的背后又是什么?以及綜合法學(xué)理論是否能真的建立起來,通過對(duì)伯爾曼理論的深刻反思,讀者會(huì)驚奇發(fā)現(xiàn)其世界法理論事實(shí)上是以宗教為原始起點(diǎn)和最終落腳點(diǎn)的。 本文便是按照以上邏輯來試圖分析有關(guān)伯爾曼世界法的相關(guān)理論,按照一般的行文邏輯結(jié)構(gòu)分成四個(gè)部分,第一個(gè)部分重點(diǎn)描述伯爾曼的世界共同法理論提出的背景,即是何種現(xiàn)實(shí)原因讓他提出世界共同法這一理論。第二部分著重概述世界共同法理論的基本問題,這其中包含世界法的生成基礎(chǔ)和伯爾曼獨(dú)特的方法論。第三個(gè)部分介紹了伯爾曼對(duì)構(gòu)建世界共同法所采取的幾點(diǎn)措施,此部分內(nèi)容是伯爾曼世界共同法理論的重點(diǎn)。最后一部分是對(duì)伯爾曼有關(guān)世界共同法理論的部分反思,通過對(duì)其危機(jī)理論和世界法基礎(chǔ)理論的反思來試圖更加深刻的剖析伯爾曼的世界法理論。
[Abstract]:With the deepening of economic globalization, the exchanges between countries are getting closer and closer, and the exchange of legal culture based on the economic base is becoming more and more frequent, which makes the development of law tend to globalization. Berman, an American jurist, described this situation and showed a beautiful picture of the world with his own set of unique theories, which resulted in Berman's theory of world common law. Berman is a famous contemporary western jurist. His legal thought is full of concern for reality and prayer for the future. His legal theory is rich and profound and unique. This paper attempts to outline the theory of world common law in his legal thought according to the general logic of Berman's theory. From a logical point of view alone, Berman's theory of world common law was first based on the background of a "crisis" in western society. Through the restoration of the western legal tradition and the innovation in the ideological field, The establishment of comprehensive law and the formation of dialectical unity of law and religious system finally led to the birth of world common law. The world law of Berman's time has certain characteristics and realistic foundation, as well as many difficulties he faces. Berman uses his unique world outlook and methodology to explain the track of the development of common law and try to solve the dilemma he faces. When talking about the concrete construction of the common law of the world, Berman put forward a series of methods and measures to solve many problems that hinder the emergence and development of the law of the world. These measures include reshaping a western legal tradition that can guide the development of world law, breaking away from dualism, reforming in the field of legal education and establishing an integrated comprehensive legal theory. After putting forward these rescue measures, Berman finally emphasized the dialectical integration of law and religion, and provided the system and belief system for the world common law in the future. In order to make the world law develop healthily and gradually perfect. Berman's theory of world law has its inherent basis. However, by carefully studying Berman's many related theories about world common law, we can also find some problems worthy of reflection. Is the crisis of social law in the West really a catastrophic crisis? What is behind this crisis? And whether the comprehensive legal theory can really be established, through the profound reflection on Berman's theory, readers will be surprised to find that his theory of world law is in fact based on religion as the original starting point and final foothold. According to the above logic, this paper attempts to analyze the relevant theories of Berman's world law, which is divided into four parts according to the general logical structure of the text. The first part focuses on the background of Berman's theory of world common law. That is, what practical reason led him to put forward the theory of world common law. The second part focuses on the basic problems of the theory of world common law, which includes the formation basis of world law and Berman's unique methodology. The third part introduces some measures taken by Berman to construct the world common law, which is the focus of Berman's theory of world common law. The last part is a part of Berman's reflection on the theory of world common law, and tries to analyze Berman's theory of world law more deeply through the reflection of his crisis theory and the basic theory of world law.
【學(xué)位授予單位】:西南政法大學(xué)
【學(xué)位級(jí)別】:碩士
【學(xué)位授予年份】:2012
【分類號(hào)】:D90
本文編號(hào):2492071
[Abstract]:With the deepening of economic globalization, the exchanges between countries are getting closer and closer, and the exchange of legal culture based on the economic base is becoming more and more frequent, which makes the development of law tend to globalization. Berman, an American jurist, described this situation and showed a beautiful picture of the world with his own set of unique theories, which resulted in Berman's theory of world common law. Berman is a famous contemporary western jurist. His legal thought is full of concern for reality and prayer for the future. His legal theory is rich and profound and unique. This paper attempts to outline the theory of world common law in his legal thought according to the general logic of Berman's theory. From a logical point of view alone, Berman's theory of world common law was first based on the background of a "crisis" in western society. Through the restoration of the western legal tradition and the innovation in the ideological field, The establishment of comprehensive law and the formation of dialectical unity of law and religious system finally led to the birth of world common law. The world law of Berman's time has certain characteristics and realistic foundation, as well as many difficulties he faces. Berman uses his unique world outlook and methodology to explain the track of the development of common law and try to solve the dilemma he faces. When talking about the concrete construction of the common law of the world, Berman put forward a series of methods and measures to solve many problems that hinder the emergence and development of the law of the world. These measures include reshaping a western legal tradition that can guide the development of world law, breaking away from dualism, reforming in the field of legal education and establishing an integrated comprehensive legal theory. After putting forward these rescue measures, Berman finally emphasized the dialectical integration of law and religion, and provided the system and belief system for the world common law in the future. In order to make the world law develop healthily and gradually perfect. Berman's theory of world law has its inherent basis. However, by carefully studying Berman's many related theories about world common law, we can also find some problems worthy of reflection. Is the crisis of social law in the West really a catastrophic crisis? What is behind this crisis? And whether the comprehensive legal theory can really be established, through the profound reflection on Berman's theory, readers will be surprised to find that his theory of world law is in fact based on religion as the original starting point and final foothold. According to the above logic, this paper attempts to analyze the relevant theories of Berman's world law, which is divided into four parts according to the general logical structure of the text. The first part focuses on the background of Berman's theory of world common law. That is, what practical reason led him to put forward the theory of world common law. The second part focuses on the basic problems of the theory of world common law, which includes the formation basis of world law and Berman's unique methodology. The third part introduces some measures taken by Berman to construct the world common law, which is the focus of Berman's theory of world common law. The last part is a part of Berman's reflection on the theory of world common law, and tries to analyze Berman's theory of world law more deeply through the reflection of his crisis theory and the basic theory of world law.
【學(xué)位授予單位】:西南政法大學(xué)
【學(xué)位級(jí)別】:碩士
【學(xué)位授予年份】:2012
【分類號(hào)】:D90
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