【作者】 王孟林；

【导师】 赵新华；

【作者基本信息】 吉林大学 ， 法学理论， 2009， 博士

【摘要】 为了厘清法律自治性与法律现代性问题的关联,本文采取“以现代性问题为中心的思想史考察”路径对法律自治理论的流变进行了思想史考察。本文从韦伯的法律社会学理论出发,以“法的自治性与法的现代性”为主线的探讨了从韦伯经后现代主义法学(批判法学、种族批判法学和激进女权主义法学等)到卢曼和范·胡克围绕着“现代社会的法律自治”而展开的证成、质疑和捍卫的思想历程。本文认为,法律自治性是现代法律的基本属性,法的现代性问题形成的一大原因即源于后现代法学对法律自治性或形式合理的“自治型法”的质疑和解构。以批判法学、种族批判法学和激进女权主义法学等为代表的后现代法学分别从阶级结构、种族结构和性别结构等向度彰显了法律的政治与文化之维,进而消解了法律的自治性;而卢曼和范·胡克则分别从基于系统视角和基于“法律系统”与其环境之“沟通”的“外部视角”将道德、政治等非法律因素对法律的影响分别解释为“环境”对“法律系统”所产生的、需要依凭法律系统的逻辑予以过滤的影响和其他社会系统对法律系统的“循环”或“沟通”过程,进而异曲同工地获得了倾向于捍卫法律自治性的理论。法律自治性理论的上述流变既是与“形式法治”(“自由主义形式法范式”)和“实质法治”(“福利国家实质法范式”)交替产生、拉锯互动的过程相一致的,也体现了法律的自治性与合法性之间的张力。更多还原

【Abstract】 The autonomy of law is a basic characteristic and key element of modern law. From the perspective of thought history, deconstructing the autonomy of law is a core topic of modernity problem of law which emerges with the advent of post-modern jurisprudence with the background of so-called“1960s Crisis”. Therefore, how to understand the autonomy of law is a key point to fully comprehend modernity problem of law. Insofar as I can say now, there are some defects in the studies of legal autonomy at home and abroad except the original researches of some famous writers such as Max Weber, Niklas Luhmann, Robert Unger and Roger Cotterrell: Firstly, Concentrating on the introduction of thoughts of one scholar, lack thought-history reviews; Secondly, the research of legal autonomy as such presupposes the autonomy and self-containing of legal science, ie. limited to the perspective of legal science alone, without perspectives of other discipline, especially social theory; Thirdly, studying legal autonomy without combining it with law’s modernity problem from the angle of the latter. In order to avoid the above shortcomings, this dissertation will use the approach of thought-history review centered on modernity problem, which means: Firstly, it adopts an approach of longitudinal review of thought-history; Secondly, it attempts a trans-discipline method oriented by problem not by discipline; Thirdly, it studies legal autonomy combining it with law’s modernity problem.In the specific discussion, based on the investigation of theoretic thread of legal autonomy from Weber to Luhmann through post-modern jurists, the dissertation tries to concentrate on the relation between autonomy of law and law’s modern problem to study the legal autonomy thoroughly. The reasons why the dissertation begins its analysis with Weber’s legal sociology are as follow: (1) Weber’s sociology appears as a face of the foundation of all the social sciences including legal science, so it offers us an“external perspective”in terms of social theory which can be used for the understanding of legal phenomenon; (2) Far more important, though, is that Weber’s sociology provides us with a key to understanding of modern legal phenomenon including autonomy of law. The core of laws’modernity problem which emerges from deconstructions of legal autonomy pushed by post-modern jurisprudence in broad sense represented by Critical Legal Studies, Critical Race Theory and Radical Feminist Jurisprudence. So, we are supposed to analyze the challenges confronted by Weberian legal autonomy theory in the“post-modern complex society”, based on the investigation the deconstructions of Weberian theory pushed by post-modern jurists. Therefore, in order to properly orientate the autonomy of law and its limitations in“Post-modern complex society”, it is necessary for us to study the reconstructions of legal autonomy put forward by Luhmann’s autopoiesis theory and Mark van Hoecke’s communicational theory of law.Except for the Introduction concentrating on the theoretical constructing of the thesis or topic and giving some restrictive explanations, the article is divided into four chapters. In the Chap. II, the author mainly discuss the social-theory foundation of autonomy of law centering on Weber’s theory of legal autonomy. From the survey of Weber’s legal sociology, we can see that legal autonomy of law is a consequential conclusion of Weber’s theory of rationalization (especially his theory of social rationalization); According to Weber’s theory of rationalization (especially his theory of social rationalization), legal rationalization, as a part of social rationalization, is a logical premise of legal autonomy. Disenchantment of worldviews and differentiation of cultural spheres (science, morals and arts) offers legal autonomy a cultural condition, because differentiation of cultural spheres not only differentiates normative sphere of culture (moral-practical sphere) from other spheres of culture (cognitive sphere and representative sphere), but also distinguishes morality from law and make them independent each other. Capitalist economical system and bureaucratic system adhering to purposive rationality (formal rationality or instrumental rationality) bring legal autonomy economical and political conditions, while“formal-rational law”supplies it with internal (legal) condition making modern law distinguished primarily three formal properties: positivity, legalism and formality.In Chap.III, the author investigates the political and cultural dimensions of law in“post-modern complex society”according to the deconstructions of legal autonomy pushed by post-modern jurisprudence in broad sense represented by Critical Legal Studies, Critical Race Theory and Radical Feminist Jurisprudence.“Post-modern complex society”is a value-pluralistic as well as cultural-and-political-pluralistic society. It is under the context that Critical Legal Studies, Critical Race Theory and Radical Feminist Jurisprudence emerge and begin to question the autonomy and neutrality of modern law from the cultural-and-political-pluralistic perspectives.For Critical Legal Studies, it visualizes the political dimension of law, ie. modern law which is autonomous and neutral at first sight boils down to politics, only reflecting the advantages of the upper class; As far as Critical Race Theory and Radical Feminist Jurisprudence is concerned, they reveal the cultural dimension of law, ie. modern law which is autonomous and neutral apparently only express the advantages of the dominant groups about race and gender (“law embodies male outlook”,”law is a slave of racist dominance”).If law only reflects the advantages of the upper class or the white or the male, the formal autonomy of law is questionable. In this sense, the emergence of Critical Legal Studies, Critical Race Theory and Radical Feminist Jurisprudence challenge fundamentally the formal autonomy of law.In Chap.IV, the author studies the reconstructions of legal autonomy taking Luhmann’s autopoiesis theory and Mark van Hoecke’s communicational theory as an illustration. There are thought trends relativating or even denying legal autonomy under the pound of post-modern jurisprudence. But Luhmann and Mark van Hoecke argue for the reconstructive approach. Based on the system theory, Luhmann emphasizes its effects on diminishing complexity of modern society of legal autonomy, and reconstruct a new theory on legal autonomy, autopoiesis theory following the idea of strengthening the autonomy of law; Mark van Hoecke, a Belgium jurist, advocates a circular theory on legal autonomy which combines legal autonomy with legal legitimacy and seek for dynamic equilibrium between them, by bringing the“circular communication”between legal system and its inviroment (non-legal systems) into the view or horizon of legal theory.In Chap.V, based on the former studies, the author summarizes the review of thought-history of legal autonomy. The author dawns a conclusion as follow: the evolvement of the theory of legal autonomy mentioned above not only fits in with the process of interaction between“formal rule of law”(“liberalist formal paradigm of law”) and“substantial rule of law”(“welfare paradigm of law”), but also incarnates the tension or even paradox between legal autonomy and legal legitimacy.更多还原