瞿同祖法律思想研究
发布时间：2018-08-17 10:52
【摘要】：瞿同祖作为近代中国社会转型期的知识分子,对中国法律与中国社会的研究在中国学术史上具有承上启下的重大作用,他认为在研究法律的时候,应当密切注意法律与社会之间的关系,而不能像分析主义法学将法律与政治、经济、文化等社会现象割裂开来,法律是社会的产物,只有充分了解一部法律产生的社会背景,才能了解这些法律的意义和作用。他采用功能主义分析方法对两千多年的中国传统社会中的法律精神进行分析,这种方法在新中国成立前具有很明显的时代性,瞿同祖采用西方社会学的方法来研究中国传统社会中的法律现象及其精神,对中国法学研究的贡献极大。但是我国学术界并没有对他的学术思想进行更系统的总结,也没有进行更深入的研究。为此,本文打算在深入分析瞿同祖所处的时代背景和理论背景的基础上,结合瞿同祖著作,对瞿同祖的思想进行一次系统的总结、分析与梳理,希望能弥补我国法社会学研究上的相关空白,为学术传承尽一份心力,为社会主义法律体系的建设提供一些参考性的材料。 本文在结构上分为三个部分。 第一部分介绍瞿同祖法律思想的理论渊源和时代背景,主要解决瞿同祖研究中国法律与中国社会的时代大背景,分析了在社会格局发生变化的情况下,瞿同祖思想的时代性。当时的历史法学、法社会学等思想影响了瞿同祖法社会学思想的形成。 第二部分讨论瞿同祖法律思想的主要内容,通过分析瞿同祖的著作以及其它相关文章,研究瞿同祖法律思想的基本内容。认为瞿同祖的法学思想主要是法社会学思想,主要包括两大部分：一是对中国传统法律与社会之间关系的研究,通过对家族法与国家法的性质及相互关系的研究,认为中国传统社会的性质是身份社会,在这种身份社会下,中国传统法律的特点是伦理法律；二是在得出这样一个结论的过程中,瞿同祖主要采用了功能主义的分析方法和实证的研究方法,本文对这两种研究方法进行分析,认为在研究历时两千多年的中国传统社会的法律精神时,采用功能主义的分析方法具有一定的优越性,但是也有不可忽视的缺点。在实证的分析方法中,瞿同祖广泛采用了法学、社会学等学科的材料来研究分析中国传统社会中的法律,从而得出中国古代法律的特征和精神是什么,这是后辈学人必须要学习之处。这一部分分两章来陈述,是本文的重点。 第三部分分析瞿同祖法律思想在当代中国法律体系完善和法学研究中的作用,主要考察在社会主义法律体系的完善过程中如何对待民间法的作用,在社会主义法学体系的建立过程中如何重视方法论的作用。
[Abstract]:As an intellectual in the transition period of modern Chinese society, qu Tongzu played an important role in the study of Chinese law and Chinese society in the academic history of China. We should pay close attention to the relationship between law and society, instead of separating law from political, economic, cultural and other social phenomena, like analytical jurisprudence. Law is the product of society, and only a full understanding of the social background of a law can be obtained. In order to understand the significance and role of these laws. He used the functionalist analysis method to analyze the legal spirit in the traditional Chinese society for more than two thousand years. This method had an obvious contemporary character before the founding of New China. Qu Tongzu made great contributions to the study of the legal phenomena and spirit in Chinese traditional society by means of western sociology. But the academic circles of our country have not carried on the more systematic summary to his academic thought, also has not carried on the deeper research. Therefore, on the basis of deep analysis of the background of qu Tongzu's times and theories, and combined with qu Tongzu's works, this paper intends to make a systematic summary, analysis and combing of qu Tongzu's thoughts. It is hoped that it can make up the relevant blank in the research of sociology of law in our country, contribute to the academic inheritance and provide some reference materials for the construction of the socialist legal system. The structure of this paper is divided into three parts. The first part introduces the theoretical origin and the background of qu Tongzu's legal thought, mainly solves the background of qu Tongzu's study of Chinese law and Chinese society, and analyzes the epoch of qu Tongzu's thought under the circumstances of the change of social structure. At that time, historical jurisprudence, sociology of law and other thoughts affected qu Tongzu's formation of sociology of law. The second part discusses the main content of qu Tongzu's legal thought, and studies the basic content of qu Tong's legal thought by analyzing qu Tongzu's works and other related articles. The author holds that qu Tongzu's legal thought is mainly a sociology of law thought, which includes two parts: first, the study of the relationship between Chinese traditional law and society, and the study of the nature and mutual relationship between family law and state law. It is believed that the nature of Chinese traditional society is an identity society, in which the characteristics of Chinese traditional law are ethical law; second, in the process of drawing such a conclusion, Qu Tongzu mainly used the functionalist analysis method and the empirical research method. This paper analyzes these two research methods, and thinks that in studying the legal spirit of the traditional Chinese society for more than two thousand years, The functionalism analysis method has certain superiority, but also has the shortcoming which cannot be ignored. In the empirical analysis method, qu Tongzu has widely used the materials of law, sociology and other disciplines to study and analyze the law in the traditional Chinese society, so as to get the characteristics and spirit of the ancient Chinese law. This is where the later generations have to learn. This part is divided into two chapters to describe, is the focus of this article. The third part analyzes the role of qu Tongzu's legal thought in the perfection of legal system and the study of law in contemporary China, and mainly examines how to treat the function of folk law in the process of perfecting the socialist legal system. How to attach importance to the role of methodology in the process of establishing the socialist legal system.
【学位授予单位】：沈阳师范大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D909.2;D920.0
本文编号：2187375
[Abstract]:As an intellectual in the transition period of modern Chinese society, qu Tongzu played an important role in the study of Chinese law and Chinese society in the academic history of China. We should pay close attention to the relationship between law and society, instead of separating law from political, economic, cultural and other social phenomena, like analytical jurisprudence. Law is the product of society, and only a full understanding of the social background of a law can be obtained. In order to understand the significance and role of these laws. He used the functionalist analysis method to analyze the legal spirit in the traditional Chinese society for more than two thousand years. This method had an obvious contemporary character before the founding of New China. Qu Tongzu made great contributions to the study of the legal phenomena and spirit in Chinese traditional society by means of western sociology. But the academic circles of our country have not carried on the more systematic summary to his academic thought, also has not carried on the deeper research. Therefore, on the basis of deep analysis of the background of qu Tongzu's times and theories, and combined with qu Tongzu's works, this paper intends to make a systematic summary, analysis and combing of qu Tongzu's thoughts. It is hoped that it can make up the relevant blank in the research of sociology of law in our country, contribute to the academic inheritance and provide some reference materials for the construction of the socialist legal system. The structure of this paper is divided into three parts. The first part introduces the theoretical origin and the background of qu Tongzu's legal thought, mainly solves the background of qu Tongzu's study of Chinese law and Chinese society, and analyzes the epoch of qu Tongzu's thought under the circumstances of the change of social structure. At that time, historical jurisprudence, sociology of law and other thoughts affected qu Tongzu's formation of sociology of law. The second part discusses the main content of qu Tongzu's legal thought, and studies the basic content of qu Tong's legal thought by analyzing qu Tongzu's works and other related articles. The author holds that qu Tongzu's legal thought is mainly a sociology of law thought, which includes two parts: first, the study of the relationship between Chinese traditional law and society, and the study of the nature and mutual relationship between family law and state law. It is believed that the nature of Chinese traditional society is an identity society, in which the characteristics of Chinese traditional law are ethical law; second, in the process of drawing such a conclusion, Qu Tongzu mainly used the functionalist analysis method and the empirical research method. This paper analyzes these two research methods, and thinks that in studying the legal spirit of the traditional Chinese society for more than two thousand years, The functionalism analysis method has certain superiority, but also has the shortcoming which cannot be ignored. In the empirical analysis method, qu Tongzu has widely used the materials of law, sociology and other disciplines to study and analyze the law in the traditional Chinese society, so as to get the characteristics and spirit of the ancient Chinese law. This is where the later generations have to learn. This part is divided into two chapters to describe, is the focus of this article. The third part analyzes the role of qu Tongzu's legal thought in the perfection of legal system and the study of law in contemporary China, and mainly examines how to treat the function of folk law in the process of perfecting the socialist legal system. How to attach importance to the role of methodology in the process of establishing the socialist legal system.
【学位授予单位】：沈阳师范大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D909.2;D920.0
【引证文献】
相关博士学位论文 前1条
1 王瑜卿;民族交往的多维审视[D];中央民族大学;2012年
，本文编号：2187375
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