德性法律论证理论及其应用
发布时间：2018-08-07 10:45
【摘要】：法律论证理论要解决的问题是:如何才能使人们确信某一法律评价或决策是正确的?从广义的法律论证角度看,法律思想史上解决这一问题的路径主要有两条: 其一,依据人的本性来确立和证立正确的公共标准并使人确信某一具体的法律评价或决策的正确性。总的来说,这一路径将人类的价值选择生活分成人性的事实和行为规范两个部分,存在着以下困难:以哪一种人性为依据?符合人性事实的在价值选择上就是正确的吗?对此,人们充满争议。因而,它不能满足法律论证的公共性要求。这一缺陷以多种不同的形态存在于其具体的样式中,这些样式包括功利主义、情感主义(包括法律修辞学)、理性主义(包括法律逻辑学和论辩法律论证理论)、自由主义等。 其二,依据人的人性之外的正当性目的(例如善)来确立和证立正确的公共标准(德性)并使人确信具体的法律评价或决策的正确性,这是德性伦理学的路径。它将人类的价值选择生活分成人性的事实、行为标准和正当性目的三部分。在其发展的早期,人们一方面试图依据善特别是最高的善来建立正确的立法标准(德性),另一方面强调法律的目的在于使人成为善人或有德性的人,但是,由于没有区分个人的善和共同体的善,他们关于善特别是最高的善的观念存在着缺陷。后来坚持从德性伦理学的立场来解决法律正确性问题的学者主要沿着两种不同的方向来发展德性伦理理论。一种是基于主体的德性伦理学理论,它主张以有德性的人的所作所为作为判断行为对错的标准。但是,这存在着问题:我们怎么知道谁是有德性的人?我们怎么知道他在特定的情形下会做什么?这些问题使得基于主体的德性法律论证理论失却了它所期望的力量。另一种是基于善的德性伦理学理论,它主张要以共同的善特别是最高的共同善作为依据来解决有关法律论证的问题。本来,这一路径在逻辑上可以满足法律论证的公共性要求,但是,对什么是共同的善,特别是什么是最高的共同善,他们要么是没有清晰的界定,要么是其界定实际上缺少公共性。 为了解决法律论证理论的问题,在继承基于善的德性伦理学理论传统的基础上,建立起了德性法律论证理论。这一理论的主要立场是:其一,人类的价值选择生活包括人性的事实、行为规范(德性)和善三个部分;其二,法律论证的依据是共同的善;在共同的善中必须存在最高的善;这最高的共同善是人类的繁荣。它的客观要求是:尊重和爱惜人类的生命和健康;维系人类之间和人类与自然之间的和谐关系;将现有的生活机会向所有人开放。 本文认为基于这一立场的理论能够解决法律论证问题。因为:其一,它能够确立起法律论证的公共标准。因为人类的繁荣和其他共同的善都是公共的,而法律论证的标准即德性是能够从它们中必然地推出来的。其二,它能证立它所建立的确立的诸标准(诸德性)。因为,人类的繁荣和以此为依据的其他共同善是善的。其三,它还可以解决法律论证的形式标准和论证方法等其他问题。 根据这一德性法律论证理论,可以对法律论证所需要的共荣性正义德性标准、优先性正义德性标准、尊重自由权的德性标准和尊重法律事实的德性标准作如下界定: 其一,它们都有其特定的适用范围。共荣性正义标准用于处理能够并存且应该并存的利益关系;优先性正义标准用于处理不能并存或不应该并存的利益关系;尊重自由权的标准适用于正义标准适用的领域之外领域;尊重事实的立法标准适用于要对是否要将某种事实纳入某一法律规范还是将它排除在该法律规范之外作出判断的情况,其司法标准适用于要对某一案件事实是否属于某一法律规范的要件事实及其真实性作出判断的情况。 其二,它们是特定社会共同体的立法者或法官所确认的标准; 其三,它们要有助于人类的繁荣,或至少不会:a/漠视人类的生命和健康;b/破坏人类之间和人类与自然之间的和谐关系;c/限制现有的生活机会向所有人开放。
[Abstract]:The problem of the theory of legal argumentation is: how can we make people believe that a certain legal evaluation or decision is correct? From the perspective of the broad sense of law, there are two main ways to solve this problem in the history of legal thought.
First, according to human nature, establish and establish correct public standards and make sure that a specific legal evaluation or decision is correct. In general, this path divides human life into two parts of human nature and behavior norms. Is it correct in the choice of value? People are full of controversy. Therefore, it can not meet the public requirements of legal argumentation. This defect exists in its specific patterns in a variety of forms, which include utilitarianism, emotionally (including Legal Rhetoric), rationalism (including legal logic and argument). The theory of legal argumentation, liberalism, etc.
Secondly, it is the path of moral ethics to establish and establish correct public standards (virtue) and make sure that the specific legal evaluation or decision is correct according to the legitimate purpose of human nature (such as good). This is the path of moral ethics. It divides human life into three parts of human nature, behavior standard and justifiable purpose. In the early stages of development, on the one hand, people tried to establish the right legislative standards (virtue) based on good, especially the highest good. On the other hand, the purpose of the law was to make people a good or virtuous person. However, there was a defect in the idea of good, especially the highest good, because there was no distinction between the good and the good of the community. Later, the scholars who insist on solving the problem of legal correctness from the standpoint of virtue ethics mainly develop the moral theory of virtue along two different directions. One is based on the moral theory of the subject, which advocates the behavior of the person with virtue as the criterion for judging the wrong behavior. However, this is the question: how do we How do we know who is virtuous? How do we know what he will do in a particular situation? These questions make the theory of virtue based on the subjectivity of the subject lose the power it expects. The other is based on the virtue ethics of goodness, which advocates that the common good is the highest common good as the basis for solving the problem. The problem of legal argumentation. This path, originally, can logically satisfy the public requirements of legal argumentation, but what is common good, especially what is the highest common good, either is not clearly defined, or its definition actually lacks public nature.
In order to solve the problem of the theory of legal argumentation, on the basis of inheriting the theoretical tradition of virtue ethics based on good, the theory of virtue legal argumentation is established. The main position of this theory is: first, the human value choice of life includes the fact of human nature, the norm of behavior (virtue) and good three parts; secondly, the basis of the legal argumentation is common. The same good; the highest good in the common good; the highest common good is the prosperity of mankind. Its objective demands are to respect and cherish human life and health; to maintain a harmonious relationship between human beings and between human and nature; and to open the existing opportunities to the people.
This paper argues that the theory based on this position can solve the problem of legal argumentation. For one, it can establish the public standard of legal argumentation. Because human prosperity and other common good are public, and the standard of legal argumentation is that virtue can be pushed out of them. Secondly, it can prove the establishment of it. The established standards (virtue), for the prosperity of human beings and other common goodness based on it are good. Thirdly, it can also solve other problems, such as the formal standard and the method of argumentation of the legal argumentation.
According to this theory of virtue legal argumentation, it can be defined as follows: the standards of virtue, justice, virtue, justice, virtue and virtue, and the virtue standards of respect for the right of freedom and the virtue standards of respect for the legal facts are defined as follows.
First, they all have their specific scope of application. The standard of common justice is used to deal with the coexistence and coexistence of interests; the standard of priority justice is used to deal with the interests that cannot coexist or should not coexist; the standards of respect for the right to freedom are applicable to the field beyond the applicable standards of justice; the legislative standards of respect for the facts are respected. It applies to cases where a certain fact is to be incorporated into a legal norm or excluded from the legal norm, and its judicial standard is applicable to judging the facts and truthfulness of the fact that a certain case is in the case of a certain legal norm.
Second, they are the criteria recognized by legislators or judges of specific social communities.
Third, they will help the prosperity of human beings, or at least not: a/ disregards human life and health; b/ destroys the harmonious relationship between human beings and human and nature; c/ limits the existing opportunities of living to all people.
【学位授予单位】：中国政法大学
【学位级别】：博士
【学位授予年份】：2011
【分类号】：D90-05
本文编号：2169779
[Abstract]:The problem of the theory of legal argumentation is: how can we make people believe that a certain legal evaluation or decision is correct? From the perspective of the broad sense of law, there are two main ways to solve this problem in the history of legal thought.
First, according to human nature, establish and establish correct public standards and make sure that a specific legal evaluation or decision is correct. In general, this path divides human life into two parts of human nature and behavior norms. Is it correct in the choice of value? People are full of controversy. Therefore, it can not meet the public requirements of legal argumentation. This defect exists in its specific patterns in a variety of forms, which include utilitarianism, emotionally (including Legal Rhetoric), rationalism (including legal logic and argument). The theory of legal argumentation, liberalism, etc.
Secondly, it is the path of moral ethics to establish and establish correct public standards (virtue) and make sure that the specific legal evaluation or decision is correct according to the legitimate purpose of human nature (such as good). This is the path of moral ethics. It divides human life into three parts of human nature, behavior standard and justifiable purpose. In the early stages of development, on the one hand, people tried to establish the right legislative standards (virtue) based on good, especially the highest good. On the other hand, the purpose of the law was to make people a good or virtuous person. However, there was a defect in the idea of good, especially the highest good, because there was no distinction between the good and the good of the community. Later, the scholars who insist on solving the problem of legal correctness from the standpoint of virtue ethics mainly develop the moral theory of virtue along two different directions. One is based on the moral theory of the subject, which advocates the behavior of the person with virtue as the criterion for judging the wrong behavior. However, this is the question: how do we How do we know who is virtuous? How do we know what he will do in a particular situation? These questions make the theory of virtue based on the subjectivity of the subject lose the power it expects. The other is based on the virtue ethics of goodness, which advocates that the common good is the highest common good as the basis for solving the problem. The problem of legal argumentation. This path, originally, can logically satisfy the public requirements of legal argumentation, but what is common good, especially what is the highest common good, either is not clearly defined, or its definition actually lacks public nature.
In order to solve the problem of the theory of legal argumentation, on the basis of inheriting the theoretical tradition of virtue ethics based on good, the theory of virtue legal argumentation is established. The main position of this theory is: first, the human value choice of life includes the fact of human nature, the norm of behavior (virtue) and good three parts; secondly, the basis of the legal argumentation is common. The same good; the highest good in the common good; the highest common good is the prosperity of mankind. Its objective demands are to respect and cherish human life and health; to maintain a harmonious relationship between human beings and between human and nature; and to open the existing opportunities to the people.
This paper argues that the theory based on this position can solve the problem of legal argumentation. For one, it can establish the public standard of legal argumentation. Because human prosperity and other common good are public, and the standard of legal argumentation is that virtue can be pushed out of them. Secondly, it can prove the establishment of it. The established standards (virtue), for the prosperity of human beings and other common goodness based on it are good. Thirdly, it can also solve other problems, such as the formal standard and the method of argumentation of the legal argumentation.
According to this theory of virtue legal argumentation, it can be defined as follows: the standards of virtue, justice, virtue, justice, virtue and virtue, and the virtue standards of respect for the right of freedom and the virtue standards of respect for the legal facts are defined as follows.
First, they all have their specific scope of application. The standard of common justice is used to deal with the coexistence and coexistence of interests; the standard of priority justice is used to deal with the interests that cannot coexist or should not coexist; the standards of respect for the right to freedom are applicable to the field beyond the applicable standards of justice; the legislative standards of respect for the facts are respected. It applies to cases where a certain fact is to be incorporated into a legal norm or excluded from the legal norm, and its judicial standard is applicable to judging the facts and truthfulness of the fact that a certain case is in the case of a certain legal norm.
Second, they are the criteria recognized by legislators or judges of specific social communities.
Third, they will help the prosperity of human beings, or at least not: a/ disregards human life and health; b/ destroys the harmonious relationship between human beings and human and nature; c/ limits the existing opportunities of living to all people.
【学位授予单位】：中国政法大学
【学位级别】：博士
【学位授予年份】：2011
【分类号】：D90-05
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