【作者】 孙国东；

【导师】 邓正来；

【作者基本信息】 吉林大学 ， 法学理论， 2008， 博士

【摘要】 为了把握其复杂的内在理路及其相对于相关理论模式的“知识增量”,本文采取“重构性进路”与“外部视角”相结合的研究进路对哈贝马斯商谈论合法化理论进行了解读。本文从哈贝马斯对当下道德意识与法律意识结构的时代诊断和社会理论建构出发,立基于他对后传统社会的道德哲学建构,分别以康德式理性自然法和韦伯式实证论合法化理论为外部参照框架,分析了哈贝马斯商谈论法律合法化理论及其相对于康德式理性自然法和韦伯式实证论合法化理论的“知识增量”。本文认为,哈贝马斯商谈论合法化理论是一种“程序性”、“商谈论”、“民主论”的,同时建基于“合道德性”与“合法律性”之上的理论;该理论意欲基于韦伯的社会理论建构在“后传统”的现代复杂社会背景下同时捍卫康德式的道德普遍主义和卢梭式的激进民主传统。哈贝马斯坚持了康德基于实践理性法则(合道德性)的合法化论说模式,但是主要通过“实践理性多态论”的建构,并通过将康德那里的“语义普遍性”改造成“程序普遍性”而达致的程序主义道德观,他消解了康德在道德与法律之间所设立的等级结构;他也坚持了韦伯基于合法律性的合法化模式,但是主要通过“法律道德互补论”的建构,并通过将韦伯那里与道德无涉的形式合理性改造成可以容纳道德论辩并体现程序化道德普遍主义的程序合理性,他超越了韦伯式实证论合法化论说的描述性进路。更多还原

【Abstract】 Nowadays, there are mainly two kinds of analysis of Habermas’s discourse theory of legitimation at home and abroad: one is the“reconstructive approach”of Thomas McCarthy, the other is the“external perspective”of Wu Guan-jun. The former is of great help for us to grasp the inner line of reasoning of Habermas’s discourse theory of legitimation exactly, while the latter is beneficial to comprehend the“advancement of knowledge”of Habermas’s theory of legal legitimation. Therefore, in order to analyze Habermas’s discourse theory of legitimation comprehensively, we are supposed to combine these two approaches together, which means grasping its complicated inner line of reasoning in light of the“reconstructive approach”on the one hand, and analyzing its“advancement of knowledge”vis-à-vis the related theories from“external perspective”on the other hand.This dissertation exactly holds the approach of combining the“reconstructive approach”with the“external perspective”and analyzes Habermas’s discourse theory of legitimation from the perspective of relation between law and morality (especially the standpoint of“postcoventional moral consciousness”). Based on Habermas’s theoretical construction of posttraditional society about moral philosophy, and beginning with his time-diagnosis and theoretical building of the current moral and legal consciousness structure, the dissertation explores the“advancement of knowledge”of Habermas’s discourse theory of legitimation based on his insights of social theory and moral philosophy vis-à-vis the legitimation theory of both Kantian rational natural law and Weberian legal positivism.The reasons why the dissertation analyzes Habermas’s discourse theory of legitimation beginning with the perspective of the relation between law and morality (especially the standpoint of“postcoventional moral consciousness”) are as follow: on the one hand, the relation between law and morality constitutes the context of legal philosophy of Habermas’s discourse theory of legitimation; on the other hand, his understanding of the“normative structure”( ie. postconventional moral consciousness ) shared by moral and legal consciousness in modern society prepares a ground of social theory for his discourse theory of legitimation. There are two reasons explaining why the dissertation chooses Kantian rational natural law and Weberian legal positivism as the external frame of reference. Firstly, Habermas’s legitimation theory is built on the basis of both Kantian rational natural law and Weberian legal positivism. Secondly, either of them is a typical case in its respective field, so we can get more general conclusions if referencing to them. In other word, we can examine the“knowledge-increment”of Habermas’s discourse theory of legitimation vis-à-vis the counterparts of natural law theory and legal positivism more generally.Except for the Introduction as Chap. I concentrating on the theoretical construction of the main topic of the dissertation and giving some restrictive explanations, the dissertation is divided into six chapters. In Chap. II, beginning with the analyzing of Habermas’s theoretical building of“postconventional moral and legal consciousness structure”, the dissertation reconstructs Habermas’s line of reasoning of“modern structures of consciousness”by inquiring into his social evolutionist“translation”of Kohlberg’s theory of individual development on moral consciousness and his“development”of Weber’s theory of social rationalization. In this way, we can see that moral and legal consciousness in modern society is marked as“postconventional”or“posttraditional”normative structure, ie. following the principled, universal moral consciousness, while modern law is distinguished primarily three formal properties: positivity, legalism and formality; which means modern law can only attain its legitimacy through legality under the condition of separation between legality and morality to some extent.In order to advance the inquiry into Habermas’ss theoretical building of“postconventional moral consciousness structure”, it is necessary to go through his building of moral theory aiming at responding to the consciousness structure. In Chap. III , in contrast to Kantian ethics, the dissertation investigates Habermas’s discourse ethics by analyzing his“transformation”of Kohlberg’s theory of individual development on moral consciousness according to his theory of communicative action, especially his theory of discourse ethics. After the close studies of this chapter, we are able to find: Habermas’s response of moral theory to“postconventional moral and legal consciousness structure”is his theory of“discourse ethics”, which is based on Kohlberg’s and Kant’s moral theory and regards“the principle of discourse”(“D”) as the principle of justification of all norms and“the principle of universalization”(“U”) only as justifying principle of moral norms.After understanding Habermas’s theoretical building of“postconventional moral and legal consciousness structure”in the areas of social theory and moral philosophy, we could enter the field of legal philosophy more directly, investigating the“advancement of knowledge”of Habermas’s discourse theory of legitimation vis-à-vis the theories concerned.In Chap. IV, the dissertation studies the“advancement of knowledge”of Habermas’s discourse theory of legitimation in comparison with the counterpart of Kantian rational natural law. In the research of Kantian legitimation theory, the dissertation takes two steps. Firstly, it identifies the differences of“consent-model”between Rousseau and Kant. Secondly, it inquires into Kant’s legitimation theory based on the laws of practical reason (morality) mainly according to The Metaphysics of Morals. Through the comparative studies, we can come to the conclusion that Habermas adheres to Rousseau-Kant’s model of“self-legislation”or“consent”, or even Kant’s model of legitimacy based on the laws of practical reason (morality), but he resolves the hierarchical structure between law and morality set by Kantian rational natural law, mainly through the theoretical building of“multi-states of practical reason”and transforming“the semantic universality”into“a procedural universality”.In Chap. V, The dissertation investigates the“knowledge- incremental”of Habermas’s discourse theory of legitimation in comparison with the counterpart of Weberian legal positivism. In the study of Weberian legitimation theory, the dissertation also takes two steps. Firstly, it explores Weber’s theory about“Science and Politics”(“Value-free”and“Value-relevance”) which is of methodological significance to his political sociology and legal sociology. Secondly, it distinguishes between Weber as a“mass politician”and Weber as a scholar. As a scholar, Weber provided a academic analysis of“legitimacy through legality”(“Legal Dominance”); While as a“mass politician”, he argued for the“Führerdemokratie”(“Charismatic Dominance”) as a political choice of German of the time. From the Habermas’s perspective, both legitimation models of Weber are limited to descriptive approach, keeping legitimacy of law far from the moral-practical field. Habermas adheres to Weber’s model of“legitimacy through legality”, but he transcends or goes beyond the descriptive approach of Weberian legal positivism, mainly through the theory building of“complementary relation between law and morality”and transforming Weberian moral-free“formal rationality”into the“procedural rationality”which is capable of containing moral argumentations and incarnating procedural moral universalism.In Chap. VI, based on the former studies, the dissertation explores further Habermas’s legal position which looks on law as a media between“system”and“life-world”, the so-called“two-track model”, and the relation between his legitimation theory and the democracy theory. Based on the our close inquiry into its inner line of reasoning, we can draw a conclusion that Habermas’s discourse theory of legitimation is a procedural and discursive theory about democracy which maintains legitimacy must be obtained through both morality and legality.Based on the Weber’s social theory, the theory seeks to defend the traditions of Kantian moral universalism and Rousseauian radical-democracy at once under the condition of modern complex society .In the final or additional discussion, the dissertation chooses James L. Marsh, N.Luhmann and William Rehg & James Bohman as the representatives of“left position”,“right position”and“familial dispute”respectively and outlines typical critiques of Habermas’s discourse theory of legitimation which are great help to examine limits of Habermas’s discourse theory of legitimation.更多还原