【作者】 王家国；

【导师】 邓正来；

【作者基本信息】 吉林大学 ， 法学理论， 2010， 博士

【副题名】朗·富勒的法律观研究

【摘要】 “法律是什么?”这是一个古老而常青的问题。历史上,法学家们给出了若干种不同的答案,但朗·富勒的“目的性事业”法律观则是开创性的,他从制度设计与良好社会秩序的建构角度把过程论哲学引入法学,视法律为一项人类持续努力的有目的的活动或过程,是使人的行为服从规则治理的事业。本文在研究富勒法律理论的哲学基础与核心思想的基础上,对“目的性事业”法律观作一个全面的剖析与解读,分别从富勒所讲的法律、目的性与道德性、事业等三个层次和角度展开论述,强调了富勒以“内在道德”试图克服“分离命题”的学术努力,指出法律是人类生活的一维,法律必然离不开社会。基于此,法律的合法性论证也必然离不开法律的道德性与目的性,因为法律作为目的性事业,其目的终是建构一个“良好的社会秩序”,而法律作为规则治理之业终将体现为一种有目的的人类持续努力的过程。文章最后在上述梳理与解读基础上,重新思考拉兹、德沃金与菲尼斯等新近法学家们对目的性事业法律观的批判或延承,并努力在富勒法律理论内部对上述批判作出回应与反思。本文认为以塞尔兹尼克为代表的自然主义视角的解读才是符合互动论与过程论法律观的学术努力,而这种解读与分析法学新近兴起的自然主义方法论不谋而合。通过上述学术努力,本文试图达到两个目的:理论上,力图寻找一个新的路径来克服分析法学主流所坚持的概念分析方法所隐含的事实与价值、是与应、法律与社会等二元论;实践上,希望借此研究努力为中国的法治建设提供一种新的法律本体论视角。更多还原

【Abstract】 "What is the law?" This is an ancient and evergreen question. In the History, people had given a number of different answers, among which I think Fuller’s conception of "purposive enterprise" is breaking new ground.From the standpoint of institutional design and the construction of "eunomics", he introduced the philosophy of process into the legal ontology theory of law.According to such legal ontology, the law is a sustained effort of human purposive activity or process, it is the enterprise of subjecting human conduct to the governance of rules. This paper aims to study the philosophical principles and the core ideas of Fuller’s legal theory, and then try my best to make a comprehensive analysis and interpretation of his such concept of law accordingly from three aspects,which include Fuller’s conception of law, the purposiveness and morality of law, and what is“enterprise”. In this research,I emphasize that Fuller’s academic efforts was in a sense to use the "inner morality" to overcome the "separation thesis" ,that is to say,there is a conceptual necessary relation between the law and the morality.I note that the law is a dimension of human life. The law certainly can not do without society, so we couldn’t argue the legality of law without resorting to the morality and purposefulness of the law, because the law is a purposeful enterprise, its final purpose must be to construct a "good social order" or "eunomics". In the meanwhile, law as the enterprise of subjecting human conduct to the governance of rules is essentially a purposeful process of sustained efforts of mankind. Finally, on the basis of the researches above-mentioned, the article reflects those critiques or inherits by some recent jurists such as Raz, Dworkin and Finnis, and tries to respond these above criticism and reflection within Fuller’s legal theory. I argue that one interpretation approach represented by Selznick in the naturalistic perspective is consistent with the academic effort of Fuller’s legal process and interaction theory, and this interpretation happens to coincide with the naturalistic turn of the methodology in the new analytical jurisprudence. With such academic research, I aim at two goals: in the sense of theory, I want to suggest an approach to resolve the dualism of value and fact, is and ought to, law and society, and so on, which is mainly held by the conceptual analysis methodology of the analytical jurisprudence school. In the sense of practice, I want to suggest a functional perspective of legal ontology for our Chinese enterprise to design the legal system of the rule of law.Except for two parts of introduction and conclusion, this article is divided into 7 chapters, I will arrange the main argument-structure as follows:Chapter 1 and Chapter 2 are the basic statements of Fuller’s concept of law, in which the main topic is about the philosophy and hardcore of the“popurseful enterprise”thesis .Among them, Chapter 1 talks about the epistemology, methodology and ontology of Lon Fuller’s legal theory, summarizes that it includes the non-dualistic epistemology of "is– ought", the Methodology of "means - purpose" in the purposive interpretation ,and the ontology of law, that is, law is a purposeful enterprise or a process of human activity with sustained purposive effort. In summary, this is a good academic work which attempts to restore the law with value-laden dimension. Chapter 2 is mainly about three core concepts in Fuller’s concept of law, which correspond to three larger theoretical framework, including the spirit of Reason,the social dimension of law and the historical philosophy. Then, I think about the value-concern and the political position of Fuller’s conception of law as the purposeful enterprise.Chapter 3 to chapter 6 consist the principal part of this article. In all these chapters, I will argue about“the purposeful enterprise”thesis in details. I mainly explain about three core topics including "law", "purpose" and "enterprise" step by step. It follows:Chapter 3 and chapter 4 discuss about the concept of law from different perspectives. In chapter 3,I mainly take an analytical perspective to analysis Fuller’s conception of law, which is divided into the Law in Books and the Law in Action , Made law and Implicit Law, there is an interaction between them and they are integrative. The article points out that Fuller’s aim to analysis these concepts is to justify that the law is necessarily connected with the morality. Subsequently, with the Modal Logic theory, I analysis the concept of the "inner morality" to demonstrate that there is a necessary connection between the law and the morality, and I still takes the position of ethical naturalism to interpret the necessary connection between the internal and external morality .In conclusion, I argue that this is a functionalism jurisprudence of justice, which prevents the possible misunderstand that Fuller’s legal theory has no or only a "concept analysis." Chapter 4 is mainly from the sociological perspective to analyze Fuller’s concept of "law." Fuller thought that law and society is integrative. In the perspective of sociology, I discuss about Fuller’s concept of law in three aspects, that is, law as a dimension of human life, the "law - society" concept under the principle of polarity, and the values it pursuits, which means to balance between the individual freedom and the social order. At last, I take the methodology of naturalism natural-law method, and Quinn’s naturalistic philosophy, considering about the debate between analytic truths and synthetic truths, to discuss "law - society" concept in further. In all, I prove that there is the master test of experience in Fuller’s concept of law, through which to avoid possible accusations of relativism.In Chapter 5,I focuse on another concept in my topic, that is "purpose" or "morality". through which to explain why the people should subject his conduct to the governance of rules. The human conduct is goal-directed, the sober purpose of the law is to subject human conduct to the governance of rules, and this is a cooperative interaction or sustained effort, it is in essential a process of the collaborative articulation of shared purpose. Through the natural-law methodology, Fuller combine the purpose of law and the morality of law, and his strategy is to adopt a new concept of“institutional morality”or internal morality of law. This chapter demonstrates all this from three aspects, which include the purpose of human behavior, natural law methodology, and to justify the legality of law through the purposefulness and morality. Eventually, I conclude that it is the morality of law that makes the law possible, that is to say, the moral duty for citizens to obey the laws lie in the morality of law. In other words, the internal morality is an important criterion for the legitimacy of the law, and the purpose of the law is to subject human conduct to the governance of rules.Chapter 6 is mainly about the concept“enterprise”in Fuller’s conception of law. I start the argument to contrast two different concepts, that is, the formalism theory of“good law”and the formalism theory of“true law”, which respectively corresponds to Fuller and Hart. Accordingly, I try to explore the academic ethics and philosophy position of Fuller’s concept of law. The criterion of formalism good law is the internal morality of law which includes eight principles of legislation. As all eight principles of legality is the morality of aspiration, so their realization is a problem of degree, and the rule of law is a purposeful enterprise which needs the sustained effort of human beings. I demonstrate this in three aspects, such as Polanyi’s“scientific enterprise”, the growth of law, and a viewpoint that the rule of law is the rational human’s sustained efforts and activities. Subsequently, I discuss another opposite legal concept, that is law as a manifested fact of social power. And then I analysis some criticism to Fuller. Against these criticisms, with a perspective of "lawyer", I argue that the enterprise of the rule of law really needs human beings to work together with efforts, it is a purposeful process or enterprise. The conclusion of this discussion is that the legal philosophy of process is the philosophical background of Fuller’s concept of law.Chapter 7 is the concluding part of this whole discussion. According the specific discussions above, I turn to the recent analytical Jurists and neo-natural law jurists, who criticized Fuller’s concept of law and reconstructed it, I choose four clues to start this discussion, which includes the criticism from prof. Raz and Bix, the legal interpretation approach of Dworkin, the Thomas-tradition reconstruction by Finnis ,and the naturalistic interpretation by Selznick. I argue that the criticism from the new analytical jurists can not be established, and John Finnis’ Thomasian rescontruction is still apart far from Fuller’s naturalistic position, at last, I confirm the interpretation of naturalism by Selznick, and I finally point out that a new direction from the "naturalistic" philosophy point of view can coexist the secular natural law theory and the new analytical jurisprudence. In conclusion, I suggest a perspective of legal functionalism to think about the ontological problem of "what is the law ?",and give some reflections on this fundamentalism question-mode, which invites more discussion.更多还原