论洛克自由思想对美国宪法的塑造

发布时间：2018-06-14 12:33

本文选题：洛克 + 自由　；参考：《河北经贸大学》2011年硕士论文

【摘要】：约翰·洛克被认为是近代自由主义的奠基人,他的自由主义思想主要体现在《政府论》下篇中。其中,自然法思想、有限政府理论、财产私有制度构成了他所构想的自由社会的根基。作为世界各国所争相效仿的美国宪法,其中包含了深刻的洛克自由思想,尤其是他的自然法思想,以致有人说洛克为美国的思想家。可见,洛克在美国被冠之以很高的头衔。事实上,作为17世纪比较有影响力的思想家,洛克的思想对后世的诸多学者都有启发作用。例如,他的分权思想为孟德斯鸠所继承并发展,最终被确立为美国宪法的基本原则；有限政府理论则被汉密尔顿在《联邦党人文集》中反复引用。在谈到洛克的理论时,引人注意的是他的自然法观念,及建基于自然法观念之上的有限政府理论和私有财产制度。西方社会的法律是以理性而著称于世的,其实从实际意义上讲法律只不过是一种社会现象,而它能为西方人所广为接受并人人愿意遵守,笔者认为,这必须从源头上去理解西方人的法律观,而这又不能不提到洛克。洛克认为人是有理性的,而法律正是人的理性的一种体现,人类脱离自然状态而进入政治社会是为了克服在自然状态下的种种不便,但按照他的理论,人类并没有将全部权利都让渡给政府,而那些恒久不变的权利则构成了公民政治权利的基石；而一旦政府违反了人民设立它的初衷,则人民可基于社会契约理论重新建立一个新的政府,更换这个上帝在人间的“代理人”。从自然法出发才能正确的推断出这些理论,而从其他理论中则很难推出。本文也正是从自然法出发去试图解释洛克的复杂思想,他之所以被世人称为美国宪法之父,是与他的自然权利观和私有财产观分不开的。无私有财产观则无自然正义可言,纵观近代以来世界各国宪法史,有宪法而无宪政的例子比比皆是,可以说迄今为止真正实现宪政的国家屈指可数。究其原因,对私有财产的法律保护(纵向保护)虚无、对个人权利的极端忽视是重要原因。从这意义上讲,我们很有必要重新温习一下西方古典自由主义的经典著作,补人家早在200年前就已经学习过的课程。当今中国更需要的是思想的启蒙而不是立法数量的猛增,或许前者更需要一个漫长的时期。任何理论的产生都不是思想家坐在图书馆里想出来的,它的出现必然是与一个民族的历史惯性、特有的文化联系在一起的,洛克也不例外。早在11世纪英国就有政治妥协的传统,在欧洲大陆英国人也素以保守和尊重传统而著称于世,而我们都知道任何一个自由的社会都必然是建立在与传统相衔接的土壤之中的,切断一切传统似的改革必将是一出闹剧,也不会带来什么自由与法治。或许在这一点上,英国人是幸运的,他们的老祖宗就留给了他们政治妥协的基因。1215年《大宪章》的问世标志着他们可以以一种温和的手段来解决社会矛盾,这在人类历史上是从没有过的,而且有的国家似乎永远也不可能用这种方式来达到社会的和谐,这也是文化使然。在1787年的制宪会议上或者1803年的马布里诉麦迪逊案当中,以及后来的合众国诉尼克松案(即水门事件),看似是偶然的历史事件却隐藏着很深的文化必然性。这不仅来自于当事人的理性选择,更是他们契约文化的结果。更深层次的原因则是来源于英格兰的互相妥协尊重的文化。洛克的理论是从他的自然权利观开始的,和其他的思想家一样,洛克也假设了一个自然状态,从讨论人们在无政府状态下的种种不便自然过渡到公民社会,美国的制宪者正是沿着这样一个思路来制定他们的宪法的。众所周知,宪法是人民权利的保障书,但美国宪法继承洛克的权利观是其他各国宪法都无法比拟的。它以明确的词汇规定了人民享有哪些权利,政府小得制定法律去限制公民的宗教信仰自由等等。但美国宪法还是重点强调了人民的消极自由,这也显示了它是一部比较务实的法律,真正成为了人民权利的保障书。美国是一个法治社会,其国家的最高权威是法律,这也是衡量社会法治化程度的标志。美国人引以为豪的东西就是他们的宪法了,在一个自由社会中,法律是保障自由的最重要手段。“哪里没有法律,那里就没有自由”这是洛克在《政府论》下篇中所做出的结论,在他的眼里,法律是防止政府专断的最好手段,将人们的行为纳入法律的轨道是社会治理的较好方法。洛克反对将自由理解为放纵状态、想怎样就怎样,因为那必将带来更大的不自由。真正的自由是要受到自然法的约束,受理性原则的支配。因此,洛克更倾向于人们在社会中的自由即政治社会中的自由。“处在政府之下的人们的自由,应有长期有效的规则作为生活的准绳,这种规则为社会成员所共同遵守,并由社会所建立的立法机关来制定,”在这里洛克强调了处在政治社会中共同规则的重要性,并且这种规则应以稳定和大家共同遵守为前提。如果没有共同规则的遵守,则无异于又回到了自然状态,而政府权力的行使也必须以既定的程序作为依据,政治社会不同于自然社会的关键一点就是暴力的施行是由政府合法垄断的,也就是说依照合法程序去行使人民赋予的权力。相对于法的诸多价值,例如民主、秩序而言,美国人似乎更重视法的自由价值,可能是因为他们从没有过封建专制的传统的缘故。他们从英国继承来的传统就是自由的,因此美国人很不愿意再建立一个强大的中央政府来限制他们的自由。他们不仅吸收了孟德斯鸠的三权分立学说并付诸实践,而且在激烈的辩论中他们采用了联邦制的纵向分权体制来避免过于强大的中央政府,真正实现权力的分散化。任何一个制度的设计都不可能一次达到最完美的状态,美国社会也不例外。它的很多制度也都是在慢慢摸索中产生的,众所周知,美国是一个判例法的国家,在司法过程中更重视法官个人的经验。这也源自英国的普通法传统,在实现社会正义方面,判例法有着得天独厚的优势。美国的程序法也很发达,对于有着很深的普通法传统的国家,他们将程序看的更重要,也是保障人民权利的最后一道屏障。这从一个侧面也反映了美国法律不是停留在纸面上,他们不仅规定了具体的各项权利,而且有相应的程序法去保护这些权利,落实到每个人身上都是活生生的权利。总的来说,洛克的诸多思想中对美国产生最大影响的还是他的自然权利观,从自然权利向社会权利的过度自然会引出社会契约的订立。美国宪法序言中所称的不可转让之权利即是洛克所谓的生命权、自由权和财产权。列奥·施特劳斯在他的《政治哲学史》中说：“约翰·洛克被称作是美国的哲学家,他是我们的国王——就一个哲学家曾是一个伟大国家的国王而言。因而,我们美国人比世界上其他的民族更有责任和经验判断他的学说的正确性。”这可以说是对洛克的最为公正的评价。
[Abstract]:John Locke is regarded as the founder of modern liberalism. His liberalism is mainly embodied in the lower part of the theory of government. Among them, the thought of natural law, the theory of limited government and the private property system constitute the foundation of the free society that he conceived. Free thought, especially his natural law, so that some people say that Rock is a thinker of the United States. It is clear that Rock has been crowned in the United States with a high title. In fact, as an influential thinker in the seventeenth Century, Rock's thought has an effect on many scholars of later generations. For example, his idea of decentralization is followed by Montesquieu. Finally, it was established as the basic principle of the constitution of the United States, and the theory of limited government was repeatedly quoted by Hamilton in the Federalist collection.
When it comes to Rock's theory, it is attracting attention to his natural law concept and the establishment of the limited government theory and private property system based on the concept of natural law. The law of the west is known to the world by reason. In fact, the law is only a social phenomenon in practical sense, and it can be widely accepted by the westerners. Everyone is willing to observe, I think, it must be understood from the source of the West's view of law, and this can not be mentioned without Rock. Rock thinks that man is rational, and the law is a reflection of human reason, that human beings enter political society from the state of nature to overcome various inconveniences in the natural state, but according to him. In theory, human beings have not given all rights to the government, and the constant rights constitute the cornerstone of civil political rights, and once the government violates the original intention of the people to establish it, the people can reestablish a new government based on the social contract theory, and change the God's "agent" on the earth. It is difficult to deduce these theories from the law, but it is difficult to deduce from other theories. This article is also an attempt to explain Rock's complex thought from the natural law. The reason why he is called the father of the constitution of the United States is inseparable from his view of natural rights and the view of private property. There are many examples of constitutional history and no constitutionalism throughout the world since modern times. It can be said that there are only a few countries that have really realized constitutional government so far. The reasons are the legal protection of private property (vertical protection) and the extreme neglect of individual rights. To review the classics of Western classical liberalism and to make up for the lessons that have already been learned 200 years ago. Today, China needs a greater need for ideological enlightenment rather than a surge in the number of legislation. Perhaps the former needs a long period of time.
The emergence of any theory is not thought by a thinker sitting in the library. Its appearance is bound to be associated with a nation's historical inertia and unique cultural ties. Rock is no exception. In Eleventh Century Britain had a tradition of political compromise and was known to the British in the European continent as a conservative and respectful tradition. We all know that any free society is bound to be built in the soil with the tradition, and that cutting off all traditional reforms will certainly be a farce, and no freedom and rule of law. Perhaps at this point, the British are lucky, and their old ancestors left their political compromise gene.1215 < big. The advent of the Charter signifies that they can solve social contradictions in a mild way, which has never been in human history, and it seems that some countries never seem to be able to achieve social harmony in this way. It is also a culture. In the 1787 Constitutional Council or in the 1803 Marbury v. Madison case, As well as the later United States v. Nixon case (the Watergate incident), the seemingly accidental historical event conceals a profound cultural inevitability. This is not only from the rational choice of the parties, but also the result of their contractual culture. The deeper reason is the culture of compromise and respect from England. Rock's Theory is Beginning with his view of natural rights, like other thinkers, Rock also assumed a state of nature, from discussing the inconveniences of people in anarchy to civil society. The constitution of the United States was just following such a way of thinking of their constitutional law. It is well known that the constitution is the guarantee of the rights of the people. But the American Constitution inherits Rock's view of rights is unparalleled in other countries' constitutions. It provides a clear word for the rights of the people. The government has to make laws to restrict the freedom of the citizens' religious beliefs. But the United States Constitution emphasizes the negative freedom of the people, which also shows that it is a comparative business. Real law has really become a guarantee for people's rights.
The United States is a society under the rule of law. The supreme authority of the country is the law, which is the symbol of the degree of the rule of law in the society. What Americans take pride in is their constitution. In a free society, law is the most important means to guarantee freedom. "Where there is no law, there is no freedom". This is Rock's theory of "government" The conclusion in the next chapter is that in his eyes, the law is the best means to prevent the government's dictatorship. It is a better way for social governance to bring people's behavior into the track of law. Rock is opposed to understanding freedom as a state of indulgence and what it is like, because that will bring more freedom. The true freedom is subject to natural law. Constraints, the principle of admissibility. Therefore, Rock is more inclined to freedom in the society, that is, freedom in the political society. "The freedom of the people under the government should have long and effective rules as the yardstick of life. This rule is followed by the members of the society, and the legislature established by the society." Rilok emphasized the importance of common rules in political society, and this rule should be based on stability and common adherence.
If there is no common rule to abide by, it is not the same to return to the state of nature, and the exercise of government power must also be based on established procedures. The key to the political society, which is different from the natural society, is that the implementation of violence is legally monopolized by the government, that is to say, the rights given by the people are exercised according to legal procedures. In terms of the many values of law, such as democracy and order, Americans seem to pay more attention to the free value of law because they have never had a tradition of feudal autocracy. The traditions they inherited from Britain are free, so Americans are reluctant to set up a powerful central government to limit their freedom. Not only did Montesquieu absorb the theory of the separation of the three powers and put it into practice, but in the heated debate, they adopted the federal system of vertical decentralization to avoid the too strong central government and truly realize the decentralization of power.
The design of any system can not achieve the perfect state at a time. The American society is no exception. Many of its systems are also produced in the process of slowly groping. As is known to all, the United States is a country of case law, which pays more attention to the personal experience of the judge in the judicial process. This is also derived from the common law tradition in Britain and the realization of society. In the field of justice, case law has a unique advantage. The procedural law of the United States is also very developed. For countries with a very deep tradition of common law, they are more important and the last barrier to protect the rights of the people. All rights, and the corresponding procedural law to protect these rights, is a living right to everyone.
In general, Rock's many ideas have the greatest impact on the United States or his natural right view, which leads to the conclusion of social contract from natural rights to social rights. The non transferable right called in the preamble of the American constitution is the right to life, freedom and property of Rock, which Leo Strauss is in. In his "history of political philosophy", he said, "John Locke is called the American philosopher, he is our king - a philosopher who was a king of a great country. Therefore, we Americans have more responsibility and experience than the rest of the world to judge the correctness of his theory." this can be said to be the best for Rock. A fair evaluation.
【学位授予单位】：河北经贸大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D90

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