【作者】 金星；

【导师】 霍存福；

【作者基本信息】 吉林大学 ， 法学理论， 2009， 博士

【摘要】 本论文的主要目的在于依据韦伯的社会科学方法论与社会学研究本身来确定他对于自然法的真实态度。为此,本文首先考察了克朗曼、施特劳斯以及哈贝马斯三位学者分别依循不同的进路对韦伯法律思想的解读与批判,探讨了他们是如何将韦伯的法律观念界定为一种“实证主义法律观”的。然后,本文着重阐明韦伯的社会科学方法论与社会学思想本身实际上已经有效地回应了上述三位学者的批判,因此韦伯本人并没有主张所谓的实证主义法律观。接下来,本文详细分析了韦伯上述回应据以成立的三个主要的理论支点,此即他对于西方世界理性化进程之特质的具体界定,他的独特的“理念型”的研究方法,以及他对于学术研究与社会行动的严格区分。此外,本文也分别阐述了这三个理论支点对韦伯的法律观念的具体影响。最后,本文还分别从形式理性的自然法对于西方法律之体系化的重大贡献,以及实质理性的自然法对于法制型支配之正当性的证成这两个方面阐述了韦伯对于自然法的真实态度。更多还原

【Abstract】 Max Weber’s research on sociology and social scientific methodology provided rich theoretical resources to Western Academia. However, due to the complexity of Weber’s research and some other reasons, there are amazing differences on the interpretation of Weber’s legal thought. In this view, a prominent feature of the differences is that different scholars may have different interpretations. For example, Anthony Kronman and Leo Strauss all started the research from Weber’s social scientific methodology and then identified Weber’s view of legal positivism, but in different direction. Specifically, Kronman put more efforts on Weber’s“value theory”and had the idea of Weber’s Sociological and Moral as well as Dogmatic researching methods on legal all had their own features. The moral method could judge the law itself from the value perspective, i.e. the law was moral or inmoral, however, the dogmatic method regarded it as a standard of judging. Weber’s method of the legal sociology didn’t cover the value aspect on the two above, that was, it didn’t judge the law from the external value, nor the internal value standard. What kind of role did value play in Weber’s studies of legal sociology? Kronman believed that Weber’s legal sociology set up on two“common philosophical assumptions”, that was,“a positivistic theory of value”and“a will-centred conception of the person”. According to his interpretations that the value come out after the individual would be made, which was both practical for the study of legal sociology and social system. In this view, we can see the modern legal as a meaningful unit, which is made by human’s will. Weber put legal domination on the primacy place in the Sociology of domination was also because of such kind of domination which was set up on the base of legal made by human’s will. Then Kronman identified Weber’s view of legal positivism.Strauss reaffirmed Weber’s view of legal positivism according to his view on“facts are one thing and values another”. According to Weber, experience is objective and value is definitely subjective, that is, the value does not exist on any situation of objective knowledge. Therefore, the science should be neutral on the value, and the task of social science is only to discuss the causal connection in the experiment or the suitable relation between methods and the expected aims. Strauss insisted that one of the reasons of the rejection to the natural law was because the thought of eternal principles about right and good among people, which conflict with each other, and no one of them can prove that one was more superior than the others. Now that there is no scientific or objective knowledge in value, the basic knowledge of natural law has been completely removed, for it can not set up on the base of value. Strauss pointed out that Weber’s“Value neutrality”methodology will inevitably lead to a nihilism ending. He believes that social science must understand the specific purpose which it was looking for. And the reason why the people have dignity and are much higher than all purely natural or wild objects, is that he be able to independently set his ultimate value, and then put these values into his eternal purpose, and rationally select the means to achieve these purpose . He further pointed out that only had a good knowledge, could human beings find the right thing he need. In fact, Strauss re-lays the intellectual foundation of natural law by the thought of the existence of objective knowledge on value judgments.Habermas unscrambled Weber’s view of legal positivism from his description of legal domination. By Weber’s view, the legitimacy of legal domination based on the fact that people believe the statutes and rules must accord with the law and the dominators have the right to order people to do anything. Habermas holded that the legitimacy of legal domination was the validity of the legal form itself, which sustained a view of legal positivism. In this precondition, the power of legitimacy of law wasn’t from the relation of kindred between law and moral. After ascertaining Weber’s legal positivism, Habermas criticized Weber’s view of law from the condition in capitalistic states’increasing blend of law and moral. And then, Habermas imported organizational systemic legal communication and hereby established the moral objectivity to disprove the value theory of relativity. Finally, Kronman laid a foundation for natural law by the practical rationality.In this dissertation, Kronman, Strauss and Habermas’explains to Weber’s view of law didn’t accord with Weber’s original idea. By contraries, Weber’s view implicated the effective contradiction to their criticism. This dissertation holds that the right description of Weber’s original idea must base on these points as followed. For one thing, we must hold the whole theory venation of Hesperian’s rational research well and truly. By this, we could understand the status of formally rational law and substantively rational law in Weber’s legal thoughts. For another, we must understsnd the research method of Weber’s fabled ideal type. And only in this way, we could grasp Weber’s true view of law. Finally, we must understand the difference of the academic activities and the social activities. And we could catch on the true view of value-neutralism and value- verdict. Thereby, we could comprehend the existent inevitability of substantive rationality or value rationality in the law as experience .Concretely, first, Hesperian’s rational course contained both formally rational and substantively rational course at the same time. And Weber’s research was on the formally rational aspect which was the relation of cause and effect in rational capitalism and rational legal domination. Thereby, in this research course, the aspect of substantively rational law (such as natural law) was only as exceptional, even as reactive. Therefore, Weber’s disposal resulted from logic totally and not from value. In fact, the aspect of formally rational law wasn’t desirable in his view and he was afraid of the dissimilation of formally rational law.For another, for the“idea type”research method, Weber indicated that ideal type was fabled in methodology. It wasn’t in existence that there was true type in experience. Moreover, there weren’t strong points or weaknesses of the value in the idea types. Therefore, such as formally rational law, it was not true law. And it was a coalescent of formally rational law and substantively rational law (natural law) in some way. And that, even the formally rational law, Weber didn’t endued with its primacy in some value relative to substantively rational law. Contrarily, it has cause and effect’s relation to Weber’s research theme——the aspect of formally rational law in Hesperian’s rational course.Finally, Weber’s value-neutrality view means there aren’t scientific choices in multipleunit values. Therefore, science must be neutral. There are two meanings. Firstly, Weber accepted the theory of value’s multipleunit and the theory of value’s relativity. This disproved Kronman and he only elicited the theory of value’s dogmatism. Secondly, value-neutrality was the persistent view only in pursuit of science or on external knowledge’s researching and it wasn’t the view of social action. In Weber’s view, social action was based not only on the science but also on the value belief. Furthermore, in the field of social action, value judgement was inevitable. Therefore, value rationality or substantive rationality would be imported juristical system from the social action validly. Which is to say, in the practice, there isn’t the condition of nihilism.In the end, this dissertation studied Max Weber’s true view on the natural law from the aspects of formal rationality and substantive rationality. That was rational law contributed to Hesperian law in the logistic abstraction, and substantively rational law contributed to the legitimacy of legal domination.更多还原