论文标题:论法律的合法性
Research on Enterprise e-Business Transformation: Based on Competence View
论文作者 傅鹤鸣
论文导师 陈根法,论文学位 博士,论文专业 伦理学
论文单位 复旦大学,点击次数 100,论文页数 201页File Size10880k
2005-04-10论文网 http://www.lw23.com/lunwen_76667977/ 法律合法性;权利;整体性;平等;典范
Justice of Law ;Right; Integrity; Equality; Model
道德和法律的关系问题是理论和实践领域中一恒久之话题,人类一直未尝放弃对法律问题的正义探求,其理论形态在西方表征为自然法学派。但在十九世纪中期至二十世纪初,随之人类对实证知识的确信,现代性的扩张,分析哲学的兴起和昌盛,人们对价值问题越来越不相信,甚至鄙视。在法学领域,主张法律与道德无涉,将价值问题排除在研究之外。然而,出于对二战以及纳粹暴行的反省,使得人们重新思考法律的正义性问题,导致实证主义法学的式微以及自然法的复兴。美国著名的法哲学家罗纳德·德沃金正是这一学术运动中的一员主将,主张将法律奠基于道德基础之上,从而建立起了宏大的法律合法性理论。 德沃金法伦理思想展示的是一种基于个人权利之上、以平等为核心、以政治自由主义为指导的当代法律正义学说,是一种新自由主义的价值论法学。 德沃金认为,最重要的价值是个人主义的价值,即,每一个独立存在的人的命运和尊严,由此他提出了伦理个人主义两原则。重要性平等原则要求政府保持对个人的平等关切和平等尊重,这是政府正当性、法律合法性的内在本质要求,具体责任原则则要求个人对一切事关个人的选择负起责任,且政府没有干预的权力。德沃金设想通过一种以机会成本为核心、虚拟保险市场为手段的理想市场机制来满足伦理个人主义两原则的基本要求,从而实现理想的分配正义,这就是资源平等论。一旦作为再分配手段的政治法律制度实现了资源平等而不是福利平等,人们的良善生活也就获得了充分的保证。在德沃金这里,自由主义式的平等观是其法伦理思想的核心和基石。 权利观是德沃金法伦理思想的诞生基地。通过批评以哈特为靶子的实证主义法学,提出了他的权利论法学。他设计了“原则立论法”,指出人们不但享有法律明文规定的权利,而且有先于法律规定的权利之外的权利,这种权利既是政治权利,也是一种强硬意义上的个人有反抗政府和国家的道德上的权利。权利是针对政府而言的,不是个人袋中的私产。当然,德沃金认为其倡导的权利不同于以往的“天赋人权”观和“自然权利”观,它不预设任何形而上的特征,而是力图从现实社会中即政治社会中去型构人们的真实权利,主张权利的哲学基础是人的尊严和政治上平等。德沃金强调个人权利至上,反对以“社会权利”的名义来侵犯个人权利,且认为“社会权利”概念是一种虚幻。 建设性阐释的整体性法律观是德沃金从解释学的哲学立场上对自由主义价值论法学的充分证明和诠释。他认为,“法律是一阐释性概念”,“法律帝国是由态度来界定,而非由权力、疆界或程序来界定”。德沃金强调,人们在司法实践
The relation between law and morality is a permanent topic in both theory and practice field. Human beings have never giver up the just seek in law. The theoretical pattern of people in the west is represented by natural law school. However, people began to doubt, even contempt the value and finally it from 1850s to the beginning of 1900s, with their being more convinced of the authentic proof, of modern law concepts and with their analysis of the philosophy"s thriving. In the law realm, worth problem is excluded from the law study for people"s belief that law has nothing to do with morality. But then the introspection on World War II and the savage act of Nazi makes people rethink just law problem, which leads to the decline of legal positivism and revive of natural law.Ronald Dworkin is a chief member in the above academic campaign in which he advocates maximizing law legitimacy by basing law on morality.Dworkin"s morality concept displays a contemporary justice of law with new worth in liberal law, which regards an individual"s rights as prime, has its core on equality, guided by political liberalism.Dworkin holds that the prime value is individual worth-destiny and dignity. Then two rules for individual morality are proposed by him. The principle of equal importance demands that government should be concerned about and respect an individual equal. The rule itself is also the internal essence of just government and legitimate law. The other one is the principle of special responsibility ,which demands an individual should be independently responsible for his own affair without any interfere from the government. Dworkin envisaged an ideal market system that meets the above two basic demands to realize the just distribution which is also called equal resource distribution by viewing opportunity cost as its core, a hypothetical insurance market as its means. Once the political law system which acts as a means of redistribution realizes equality of resources rather than equality of welfare, people"s fine life will be adequately assured. As to Dworkin, liberal equality is law"s core and foundation stone.Rights are the birthplace of Dworkin"s moral law. He comes up with rights in law by criticizing Hart for his legal positivism. Dworkin conceives that Rule builds up law", in which it indicates that people enjoys rights not only specifically entitled to them but political rights that is prior to the law itself rights that can also be termedas compulsorily moral rights which revolt against the government and the country. Right is not a pocket property for any individual, but is against government. Naturally, Dworkin thinks the rights he advocates are different from previous "endowed rights" and "natural rights". What rights he advocates are without any metaphysical features, but are people"s authentic rights in real society, more specifically, in the political society. His proposition is that philosophic basis for rights is human equality in dignity and politics. He greatly emphasizes individual prime rights and opposes individual rights in the name of "social rights". To him, "social rights" is illusory.Concept of law as integrity of creative interpretation is an adequate prove and explanation for liberal worth law from philosophical hermeneutics .Dworkin considers that "Law is an interpretive concept", "law"s empire is defined by attitude, not territory or power or process". He specifies that in law practice, people"s debate of law problem is not an empirical disagreement, but a theoretical disagreement. Therefore, his view is strongly against two wrong ways of interpretation for law legitimacy: First is called conventionalism; the second is pragmatism. To Dworkin, law legitimacy is not a technological problem or a scientific problem, but a moral one. He proposes all moral and legal problems have "the only interpretation" on the condition that people abandon "correspondent conception of truth" and accept his creative conception of truth. On the basis of the model, he criticizes the internal and external skepticism to the
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