【作者】 杜健荣；

【导师】 霍存福；

【作者基本信息】 吉林大学 ， 法学理论， 2009， 博士

【副题名】以法律与社会的关系问题为中心

【摘要】 为了更为深入和准确地把握其理论的基本观点、发展脉络及知识增量,本文围绕“法律与社会的关系”这一核心问题,对卢曼法社会学理论进行一种整体性的研究。本文从卢曼对有关社会系统一般理论之建构的基本立场出发,基于其对现代社会高度复杂性情形下功能分化的观点,分析了卢曼法社会学理论在不同发展阶段的侧重点及内在的理论转换,并对有关该理论的批评和质疑进行反思,总结了这一理论所体现出的创新之处以及对当代中国法学研究和法制建设所可能带来的启示。本文认为,卢曼通过结合系统理论、沟通理论及演化理论,经由开放系统观向自创生系统观的转变,建立起一种功能主义的、多向度、多维度的法社会学理论。该理论强调法律对于社会所具有的特定功能、法律与社会其它领域在功能上的相互依赖及其在互为环境的情况下所可能形成的复杂互动、以及法律在不同维度上所同时具有的封闭性与开放性,其意在提供一种更符合现代社会及其法律所具有的复杂性的理论界说。这一理论突破了原有法学研究中内部视角与外部视角之间的对立,将法律的自主性和法律与社会的关系结合在一起进行分析,建立起了一种新的观察方式和理论视角,能够为我们更加深入地认识和理解当代中国所面临的一些理论和实践问题提供有益的启示与借鉴。更多还原

【Abstract】 There are mainly two kinds of analysis of Niklas Luhmann’s sociological theory of law: one is the reconstructive approach, another one is comparative approach. The former is helpful for understanding the inner viewpoint of this theory; the later is useful for discovering the knowledge advancement. However, until now an effective understanding of the viewpoint and knowledge advancement is still missing because of the neglecting to the early stage of the theory construction and the transition of the standpoint. So an integrated study which is combined the core question with the transition of the theory’s development is necessary. Comparing to the thinking that the core question of Luhmann’s sociological theory of law is the inner operation of the system, this dissertation take the relation between law and society as the center, for this question throughout the every stage of this theory. And so the purpose of this dissertation is to grasp the theory construction on the whole, and illustrate the significance of this theory.Except for the Chapter I as“Introduction”and Chapter VI as“Conclusion”, the dissertation is divided into four chapters. Chapter II focus on the social system theory which is the foundation of Luhmann’s sociological theory of law. Beginning with the analyzing of Luhmann’s theoretical building of the“general theory of social system”, the dissertation reconstructs the basic standpoint, the inner line of theory construction and the landscape of the“social system”of this theory. By doing so we can see that Luhmann wants to establish a theory which has a universal validity to the social phenomenon, and he makes this based on the system theory and constructivist epistemology. This theory experiences three stages: the revise on Talcott Parsons’structure-functionalism, the introduction of the system/environment distinction as the guiding distinction, and the application of the Autopoietic theory. Then he comes to the conclusion that the social system use“meaning”to distinguish itself from the machine and organic, make itself emergence by communication, and differentiation itself as different type and sub-systems. This theory not only offer the chance for inquiring legal issue for the purpose of university validity, but also make clear the basic conceptions of society and laid the groundwork for the construction of sociological theory of law.On this ground, the dissertation analyses the theory construction of this theory by focus on the two stages. Chapter III mainly discussed the attitude of Luhmann to the question“the relation between law and society”at early stage, and the relation between this attitude and his final answers to this question. Beginning by his criticism to the two types of sociological theory of law, the dissertation investigates Luhmann’s early viewpoint to the core question from two angles: static state and dynamic state, which centre the conception of“law as the structure of social system”. After the studies of this chapter, we are able to find: according to the functional-structuralism and open system theory, Luhmann explains the legal-social relation from the angle of complexity. On the static state, He introduces the law’s necessity to the society which is formulated as“law is the structure of the social system”by reconsidering on the“double contingence”and“expectation”, so he could avoid the problems like Parsonsian’s“normative integration”; on the dynamic state, he puts foreword the important thought of“the co-evolution of law and society”by resorting to Darwin’s biological evolutionary theory and combing the system theory and evolutionary theory, and explains the three-stages of the evolution of law.In Chap. IV, the dissertation firstly studies how Luhmann use the Autopoietic theory to analyses the legal system after he use it to analyses the social system. Secondly we study how Luhmann reconstructs the relation between law and society which is combined of the relation between legal system and all-embracing social system and the relation between legal system and other sub-system under the paradigm of Autopoiesis. Thirdly we also compare this theory with Gunther Teubner who is another theorist of Autopoietic theory. Based on the close inquiry into his inner viewpoint, we can draw a conclusion that although Luhmann says the law is a self-referenced, operational closed system by emphasizing the“operation”and“unity”and combining the“functional specification”and“codification”, his true intention is to reconstruct the relation between law and society, instead of isolating them and concentrating on the inner affairs of the legal system. He not only elaborates the significance of the society to the Autopoiesis of law as the“materiality continuum”, but also establishes a dialectic relation between“normative close”and“cognitive open”. And by linking the“structure coupling”to the operational closure, he could redefine the relation between law and economy, politics and morality.In Chapter V, The dissertation investigates three questions about Luhmann’s sociological theory of law. Firstly, the dissertation considers reflexively on the critical opinion about this theory, such as the doubt about the possibility of the operational closure of the legal system, the critics about the conservatism of Luhmann’s legitimating theory and critics about the de-subjectification of the legal system. By doing so, we find out some misunderstanding. Secondly, the dissertation concludes the significance of this theory. By comparing to the legal positivism and traditional sociological theory of law, we realize that Luhmann’s theory integrates the“inner perspective”and the“external perspective”, and offers a new perspective.The conclusion of this dissertation is as followed: By combining the system theory, communication theory and evolution theory, and undergo the change from open system paradigm to Autopoiesis paradigm, Luhmann constructs a sociological theory of law as functional, multi-directions and multi-dimensions. It emphasizes that law has particular function to the whole society; law is interdependence with other function domain of society; law and other function domain will impact on each other insofar they are each other’s environment; and the law is close and open on different dimension at the same time. The theories’ conation is to afford a new theory which more accurate for the complex relation between law and society in modern society. By combining the function speculation and codification, Luhmann regards law as operational closure and autonomy; by drawing distinction between normative/cognitive and code/programme, He notices the interaction between law and society, so this theory can breaks through the binary opposition between“inner perspective”and“external perspective”, offers us with a new prospect about the society and it’s law.更多还原