时间与法律：一个法哲学的阐释

发布时间：2018-05-03 14:31

  本文选题：时间观 + 时间性　； 参考：《南京大学》2012年博士论文

【摘要】：循环时间观和线性时间观,是人类的两种基本时间观类型。它们分别契合于古代法律与现代法律。在社会秩序方面,循环时间观具有现象化、整体化与永恒化的倾向,而线性时间观则具有本质化、个体化和即时化的倾向。这两种倾向分别呈现于古代法律与现代法律中。另外,在古代法律中,有关时间的内容是以循环时间观作为预设的,而在现代法律中则为线性时间观。现代法律作为法治的制度规范,其线性时间观预设也构成了法治的时间观预设。对法治的认识,有必要从时间观,特别是线性时间观的角度予以展开。从法律内容上看,无论是公有的权力和私有的权利,还是兼具公私属性义务,在面对过去、现在和将来这时间的三维时,都呈现出了其特殊而又具有一致性的面相。也就是说,它们的时间性结构既有其特殊性,也有特定历史阶段的内在一致性。在古代法律中,无论是权力、权利还是义务,都具有崇拜过去的偏好;而在现代法律中,它们则将现在和有限的将来作为其时间性偏好。就权利的时间性而言,它是根源于人的时间性的。权利是呈现于现在、根源于过去并指涉于将来的。作为权利体系的两大部类,财产权与自由平等权的时间性结构存在着差异。财产权立基于对过去事实或状态的继承,并以连贯的方式指涉于将来。自由平等权则立基于对过去社会秩序的反叛,并永恒地指涉于将来。近代以来,财产权的永恒性特征逐渐被突破,而其通过时间获得定义的特征更加明显。财产权的这种变化源于人们对其功能的改造。自由平等权不可逆的将来指向,为人类一切权利的衍生指明了方向,并确立了准则。权利的时间性说明,权利源于人与人之间的法律承认,而非一种刻意创设。从法律规范上看,规则与原则也都具有其相应的时间性结构。古代法律是一个规则发达而欠缺原则统摄的体系,其时间性结构是封闭和基于过去偏好的;现代法律则是一个原则统摄规则的体系,其时间性结构是开放和充满现在而又谨慎偏好将来的。法律的时间性所反映出来的,乃是法律是时间中的存在。而时间的法律性所反映出来的,则是时间是法律中的存在。对国家来讲,时间意味着一种秩序,是具有公法价值的。在很大程度上,国家权力的运行是依附于时间秩序的。对个人来讲,时间意味着一种资源,是具有私法价值的。从本质层面看,个人权利的展开就是在利用时间资源。迈向法治理想,需要人们认真对待时间。只有摆脱了对过去的迷思,以开放的态度看待将来,并将现在视为个人自由与权利实现的时间之所在,社会才能接近法治理想,继而,人们才能享受一种现时性的生活。法治社会蕴含着时间正义。在那些具有线性时间观传统的社会,法治中的时间正义是自然存在的;而在那些具有循环时间观传统的社会,法治中的时间正义则是一个异常紧迫的问题。
[Abstract]:The concept of cyclic time and linear time are two basic types of human time view. They fit in with ancient law and modern law respectively. In the aspect of social order, the concept of cyclic time has the tendency of phenomenon, integration and eternity, while the linear view of time has the tendency of essence, individualization and instant. These two tendencies appear in ancient law and modern law respectively. In addition, in ancient law, the content of time is based on the concept of cyclic time as a presupposition, but in modern law it is a linear view of time. As the system norm of the rule of law, the linear time presupposition of modern law also constitutes the presupposition of the time view of the rule of law. To understand the rule of law, it is necessary to start from the view of time, especially the view of linear time. In terms of legal content, both public power and private right, as well as the obligation of public and private attributes, have presented their special and consistent faces in the face of the past, present and future three dimensions of this time. In other words, their temporal structure has its own particularity as well as the inherent consistency of a particular historical stage. In ancient law, whether power, right or obligation, they had a preference for worshiping the past; in modern law, they regarded the present and the limited future as their temporal preferences. As far as the timing of rights is concerned, it is rooted in the temporal nature of human beings. Power is present in the present, rooted in the past and refers to the future. As two major categories of the right system, there are differences in the temporal structure between the right to property and the right to freedom and equality. Property rights are based on the inheritance of past facts or states and refer in a coherent manner to the future. The right to freedom and equality is based on rebellion against the social order of the past and permanently refers to the future. Since modern times, the permanent character of property right has been broken through, and the definition of property right through time is more obvious. This kind of change of property right originates from the transformation of people's function. The irrevocable future of the right of freedom and equality points out the direction for the derivation of all human rights and establishes the criterion. The time of right indicates that the right originates from the legal recognition between people, rather than from a deliberate creation. In terms of legal norms, both rules and principles have their corresponding temporal structure. Ancient law was a system in which the rules were developed but lacked the rule of principle, and its temporal structure was closed and based on past preferences, while modern law was a system of principle governing the rules. Its temporal structure is open and full of the present with a cautious preference for the future. What the timeliness of law reflects is that law is the existence of time. The legal nature of time reflects that time is the existence of law. To the country, time means a kind of order, it has the value of public law. To a large extent, the operation of state power is dependent on time order. To the individual, time means a kind of resource, it has private law value. In essence, the development of individual rights is the use of time resources. Moving towards the ideal of rule of law requires people to take time seriously. Only by getting rid of the myth of the past, looking at the future with an open mind, and viewing the present as the time for the realization of individual freedom and rights, can society approach the ideal of the rule of law, and then people can enjoy a kind of present life. The society of rule of law contains time justice. In those societies with the tradition of linear time view, time justice in the rule of law is natural, while in those societies with the traditional view of cyclic time, time justice in the rule of law is an extremely urgent problem.
【学位授予单位】：南京大学
【学位级别】：博士
【学位授予年份】：2012
【分类号】：D90
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本文编号：1838888