【作者】 郑智航；

【导师】 姚建宗；

【作者基本信息】 吉林大学 ， 法学理论， 2010， 博士

【摘要】 西方法律发展大致经历了罗马法阶段、前现代社会阶段、主体性支撑的现代社会阶段以及正在进行的主体性重建的现代社会阶段。在主体性支撑的现代社会,法律在权利话语中更为强调竞争、独白、非平等、去组织化等因素,在法律责任领域更为强调过错、互惠以及泄愤,在纠纷解决中更为强调二元对立思维、对抗思维以及过去式思维。尽管主体性支撑的现代社会的法律也强调宽容与合作、共存与共生等因素,但是占主导地位的还是前者。在正在进行重建主体性的现代社会,法律愈来愈强调宽容与妥协、理解与让步、沟通与合意、共存与共生等基本因素,而对法律中的竞争、独白、非平等、去组织化,过错、互惠以及泄愤,二元对立思维、对抗思维以及过去式思维等给予适当地弱化。转型中国的法律现代化既要完成西方在主体性支撑的现代社会完成的那种法律现代化,又要完成在重建主体性过程中将要完成的法律现代化。因此,转型中国的法律必须奉行一种共时性的内在逻辑。更多还原

【Abstract】 Against the backdrop of the globalization of law, China in its historic transition is in the process of the realization of the modernization of law. On the one hand, China should learn from the experiences and lessons in the process of western legal modernization, while on the other hand, China should also interosculate its legal system and its conception of law with those of other countries. These two tasks makes it a precondition that we should first of all make clear at least in theory the formation of the logic of western law and society in the line of their history, and the revelation of this intrinsic logic for China’s modernization of law. With this as a premise, efforts have been directed to the modern transformation of the intrinsic logic of legal systems in subjectivity-supported pre-modern societies, the turn of the intrinsic logic of legal systems of modern society in the process of the reconstruction of its subjectivity, and the influences of this transformation on the legal modernization of transitional China.As I see it, in pre-modern societies, the struggle between divine power and royal power promoted the secularization of state and law. The preliminary conception of reciprocity gave birth to the discourse of rights and the conception of lawsuit to win honor inspired people’s courage to say“no”. These provide the basis for the ushering in of modern society supported by subjectivity and the intrinsic logic of its legal systems. In modern societies supported by subjectivity, law put increasingly more emphasis on competition, monologue, inequality and de-organization in its discourse of rights. It emphasizes more on fault, reciprocity and the ventage of anger and it put more emphasis on dualistic conception, confrontation and past-tense thinking in the resolution of conflicts. In the modern time reconstruction of subjectivity under way, attention has been more often than not directed to compromise, understanding and concession, communication and agreement, coexistence and intergrowth, while the competition, monologue, inequality, de-organization, fault, reciprocity and ventage of anger are relatively weakened. The modern society supported by subjectivity and the modern society under the reconstruction of subjectivity all belong to the category of modern society, while the relationship between the two is not that of simple replacement. Quite to the contrary, the latter is a continuation and development of the former. Therefore, China in its transitional phase should take into consideration both of these two periods, rather than to emphasize one and totally ignore the other. Accordingly, a diachronic intrinsic logic is advocated in transitional China: while shaping the consciousness of rights, competition, creation and responsibility via the emphasis on monologue, competition, reciprocity and fault, efforts should also be directed to the emphasis of tolerance, cooperation, communication and coexistence with a view to do away with the defects and shortages brought forth by the consciousness of rights, competition, creation and responsibility.With the above thinking as a basis, this paper has been divided into three parts, namely introduction, main body and conclusion, in which, the main body is further divided into six sections, the intrinsic logic of legal systems in pre-modern societies, the modern transformation of the intrinsic logic of legal systems in pre-modern societies, the intrinsic logic of legal systems in modern societies supported by subjectivity, the defects in the intrinsic logic of legal systems in modern societies supported by subjectivity and its turn to inter-subjectivity, reconstruction of subjectivity and the intrinsic logic of its legal systems, and the intrinsic logic of legal systems in modern society and the legal modernization in transitional China.Chapter one employs the method of historical analysis to explore the process of separation of the law in pre-modern societies from Roman Law tradition. With this as a basis, the intrinsic logic of legal systems in pre-modern society has also been investigated, together with its defects and shortcomings.Chapter two focuses on the relationship between the intrinsic logic of legal systems in pre-modern societies and the ushering in of modern law and the requirements posed on law with its advocation of subjectivity. The basic methods used here include literature review and that of historical analysis. It is claimed that the pre-modern societies and their laws are not all faulty, as some have pointed out. Rather, they provide the foundation of state, individuality and humanity for the law of modern societies supported by subjectivity.Chapter three is directed to the analysis of the intrinsic logic of the legal systems of modern society from three perspectives, namely the discourse of rights, legal responsibility, and mechanism of resolution of disputes. In order to better grasp the internal logic of this period, tolerance and the organizational relationship between people and their position in law have also been explored. The tentative conclusion here is that the discourse of rights emphasize more on competition, monologue, inequality, legal responsibility put more emphasis on fault, reciprocity and ventage of anger, while the mechanism of dispute resolution focuses more on duality, confrontation and the past-tense way of thinking. Tolerance and organization are relatively less important in this respect.Chapter four dwells on three topics, the theoretical limitation, institutional dilemma of the intrinsic logic of legal systems in societies supported by subjectivity and the transformation of this intrinsic logic in the legal systems of modern society. In this process, the conception of inter-subjectivity protrudes itself. Conceptions like tolerance, communication and coexistence are now duly respected and emphasized.Chapter five echoes chapter three in stressing on the intrinsic logic of legal systems in the process of the reconstruction of subjectivity from perspectives like the discourse of rights, legal responsibility and the mechanism of dispute resolution. With this as a basis, the relationship between the intrinsic logic of legal systems in modern society supported by subjectivity and that in the reconstruction of subjectivity has also been discussed. It is asserted that these two types of logic are two taches in the modernization process of western legal systems. Different logics followed in different phases are determined by the main antinomy of relevant phase. The logic in the reconstruction of subjectivity is a continuation and development of the logic of the former phase, rather than a total negation of it.Chapter six applies the method of comparison to point out the characteristics, historical mission of transitional China and their requirements on law. After this preliminary analysis, the problems of law in transitional China have been dwelled upon from two angles, subjectivity and inter-subjectivity. The intrinsic logic that should be advocated in the discourse of rights, legal responsibility and the mechanism of dispute resolution in transitional China have been presented.更多还原