【作者】 刘岩；

【导师】 邓正来；

【作者基本信息】 吉林大学 ， 法学理论， 2010， 博士

【摘要】 全球化进程给法律理论研究提出了诸多挑战,并敦促我们不断思考如何应对这些挑战,进而寻求法律理论发展的可能方向和路径。威廉·特维宁教授主张复兴一般法理学正是对上述问题的一个直接的理论回应。本文旨在通过考察特维宁的一般法理学思想,揭示全球化背景下复兴一般法理学的意义与限度,为讨论全球化与法律理论问题提供一种理论视角,并期望能够由此推进我们对全球化背景下法律理论发展问题的研究。本文关注的核心问题是,特维宁是如何建构其一般法理学以应对全球化挑战的,全球化背景下复兴一般法理学的意义和限度是什么。围绕这一核心问题,本文将从特维宁的一般法理学在一般法理学传统中的地位、其一般法理学思想本身的发展过程以及其与当代从事同一主题研究的学者之间的对话和比较这三个维度展开研究。通过研究,本文指出,特维宁的一般法理学将法律理论研究同全球化直接联系起来,拓宽了英美法学的研究视野,并对分析法学和一般法理学传统都有所推进,但是其间也隐含着诸多的张力,并遗留下了未予解决的问题。我们既要对特维宁一般法理学思想中的矛盾和张力保持审慎的态度,又要看到他的思想给我们开放出的问题,认真思考如何立基于我们自己的价值观念、理想图景和立场去迎接全球化的挑战。更多还原

【Abstract】 The accelerating globalization has significant implications on and presents challenges to the discipline of law and jurisprudence as its theoretical part. How should we face these challenges and search for the possible ways to develop our legal theory in the context of globalization? Professor William Twining argues for reviving general jurisprudence, which is the direct response to the question above. This dissertation is mainly concerned with the question how Twining revived general jurisprudence in response to the challenges of the globalization and what are the significance and limits of his enterprise. The purpose of this dissertation is to provide a new perspective and a new thinking line for understanding the general jurisprudence and then to enhance our study on the problems of legal theory development in the context of globalization by studying the process of how the general jurisprudence is constructed and revealing the tension and limits of the enterprise.In order to achieve the purpose above, this dissertation tries to present Twining’s general jurisprudence in three dimensions as following: Firstly, I will put his general jurisprudence in his theoretical tradition, analyze the ways in which he criticizes, inherits and develops the theoretical tradition, and find out the limits because of subjecting to the tradition. Secondly, I will analyze the development process of his general jurisprudence, the challenges he meets in the process, and how does he treat these challenges. Thirdly, I will compare his general jurisprudence with other scholars’theories whose main concern is the development of legal theory in the context of globalization, by this way it will be easy to reveal the limits in his general jurisprudence, or in a deeper sense the challenges which they are all in the face of when they address themselves to the development of legal theory in the context of globalization.The whole dissertation consists of six chapters, namely, Introduction, The Historical Background and Theoretical Tradition of Twining’s General Jurisprudence, Theoretical Appeals or Burdens of Twining’s General Jurisprudence, The construction Process of Twining’s General Jurisprudence, Surveying the General Jurisprudence: The Dialogues and Comparisons between Different Approaches, and The Significance and Limits of Reviving General Jurisprudence in the Context of Globalization.Chapter 1 is the introduction of the dissertation, which concludes the selection and significance of the subject, the previous studies and the approach of the discussion and the structure of this dissertation. The dissertation points out, it is very important to concern with the purpose of Twining’s general jurisprudence, the problems in the process of its construction and the settlements to these problems for us to understand Twining’s general jurisprudence self, explore the questions raised from the construction and its enlightenment.Chapter 2 discusses the context of global age and the theoretical tradition in which Twining’s general jurisprudence is rooted, aiming at revealing what his theory inherits from and how it surpasses its theoretical tradition and highlighting the significance of introduction of the global factors on Twining’s general jurisprudence. The tradition of general jurisprudence in the Anglo-American legal thoughts provides some intellectual resources for reviving general jurisprudence, but the new context of globalization has some new challenges for us, so in order to response these general jurisprudence the revived general jurisprudence must surpass the tradition in some way. Globalization is the context and impulse of reviving general jurisprudence, and in some senses Twining’s attitude towards the globalization determines his core issue and the approach to it.Chapter 3 discusses the meaning of reviving general jurisprudence, the ways in which the general jurisprudence responses to the processes of globalization, the basic structure of the general jurisprudence and the central issue which is difficult to settle in his general jurisprudence. By discussing these questions, the dissertation points out that there are several missions lurking in the enterprise of reviving general jurisprudence. Although Twining’s general jurisprudence is rooted in the Anglo-American legal tradition, what he is calling for is not certain general jurisprudence already in existence in this tradition. The revived general jurisprudence broadens the scope of legal theory study at the level of abstraction, it is a flexible concept not confine to a single level at the geographical level, and it eliminates the strongly universal hypothesis as in the nineteenth century. Twining expects the revived general jurisprudence to embody the characters of the global age and to undertake the theoretical missions as following: broadening the scope of legal theory study at the level of geography, broadening the intellectual horizons of the scholars in the Anglo-American tradition, bridging the various fields and study approaches in jurisprudence and making the analytical jurisprudence open to other approaches, and searching for a new way to justify the general jurisprudence in the context of globalization in order to make the study of general jurisprudence break away from the state of self-obsession.Twining eliminates the strongly universal hypothesis as in the nineteenth century through problematizing approach, reproblematizes the generalization across boundaries and inquires how far it is feasible and desirable to generalize across boundaries as a central issue of a revived general jurisprudence. In this way Twining separates his general jurisprudence from the strongly universal hypothesis and sets aside certain room for researching some levels which can be generalized. Simultaneously, he appeals to a moderate cultural relativism, and shifts his focus from the contradictory between universalism and relativism to the question that to what degree, in what scope and how we can find the frameworks, institutions and procedures that can uphold human beings to coexist and cooperate. Hereby, Twining points out a new direction to make the generalization across boundaries possible, without appealing to the universal hypothesis which is in face of challenges.Chapter 4 generalizes and summarizes the dimensions and process that Twining constructs his general jurisprudence, and analyzes how Twining accomplishes the theoretical promises set down in his general jurisprudence. This chapter will make preparation for analyzing the significance and limits of his general jurisprudence later. The dissertation points out that the construction process contains a transition from theoretical conception, formal framework to substantial contents. He constructs it in three dimensions, viz. the analytical, normative and empirical dimensions, and he actually adopts three different approaches to justify the desirability and feasibility of his general jurisprudence in the three dimensions, simultaneously he leaves some difficulties in the three dimensions. In the analytical dimension his main work is to construct and refine the metal-language which can across boundaries, viz. to construct a general concept of law, to review the adequacy of the vocabulary for discussing legal phenomena across boundaries and to refine and develop them. In the normative dimension, he wants to justify a moderate universalism, without denying the particularities of cultures or traditions and simultaneously denying the strong version of cultural relativism, and he expects to lay down a foundation for finding some values with universal characters by dialogues between and within cultures. In the empirical dimension, he encourages a scientific attitude and expects jurisprudence to accord with some scientific tests and head towards an empirical science of law.Chapter 5 introduces Tamanaha and Santos’legal theories and compares Twining’s general jurisprudence with them in the sense of study approach. This will be helpful to highlight the characters of Twining’s theory and make further preparation for revealing his limits on the one hand, and make our horizon out of Twining’s thought framework, survey his thought in a broader context and from a broader perspective and probe into the question of legal theory’s development. The dissertation points out, although Twining and Tamanaha have chosen two different approaches to construct their general jurisprudence, actually they face a difficulty in common, that is how to construct an analytic concept which can across traditions and cultures. Contrasted to Santos’theoretical standpoint with strong political tendency, Twining throws himself into mining the theoretical heritage within the western modern tradition and keeps silence on the essentials of globalization and the oppressive power of the global structure.Chapter 6 is the conclusion of the dissertation, which summarizes the significance and limits of Twining’s jurisprudence. The health of the discipline of law in the Anglo-American tradition is the theoretical start and final aim, so the most important significance of Twining’s jurisprudence for the discipline of law in the Anglo-American tradition is that it links directly the study of legal theory with the context of globalization, and it is a theoretical response to the challenges of globalization. Twining wants to contain the analytical, normative and empirical dimensions in his general jurisprudence, but he evades probing into the questions of values in different ways in the analytical and empirical dimensions. Behind the problem above is a tension between the advocacy of the western modern values and the claim to get rid of the ethnocentric tendency. Twining obscures the question of making a decision on values through the resultant of the problematizing approach and the standpoint of moderate cultural relativism, and he actually acquiesces in the modern legal prospect which is dominated by the western values. He pays little attention to the global structure and the essentials of globalization, which makes him to emphasize the importance of the tolerance and dialogue between cultures, but can not provide a foundation and a feasible approach. Finally, the dissertation points out that we should be cautious about the tension in his general jurisprudence, realize the questions inspired by his general jurisprudence and deliberate how we response the challenges of globalization basing on the values, ideal picture and standpoint of our own.更多还原