对昂格尔法治批判理论的批判
发布时间：2018-08-17 18:08
【摘要】：在昂格尔《现代社会中的法律》一书中，“法律秩序”是其中的一个非常重要的概念。在不严格意义上来说，“法律秩序”也就被称为“法治”。昂格尔把先后人类社会出现的法律类型概括为习惯法、官僚法和“法律秩序”三种类型，其中“法律秩序”即“法治”这种类型是西方自由主义社会所独有的。在主流法学看来，，法治是迄今为止人类社会最不差的社会治理手段，可是昂格尔不这样认为，在本书中，昂格尔却论述了法治的虚假性，大胆地预言了其有解体的危机。他认为，自由主义法治只是一个虚假的神话，它不能消除日常生活中的不平等和不合理的依附，所以不能解决人类社会的秩序问题。虽然他的理论新颖而且具有冲击力，他的论文宏大而具有高瞻远瞩的气魄，可是他的法治批判理论还是存在一定的缺陷的。本文就是对他法治批判理论的一个反批判。 全文分为五个部分。正文约两万三千字。 第一部分是论文的一个引子，是对昂格尔法治批判理论的一个简单概述，包括对昂格尔所认为的现代法治出现的两个前提，即多元利益集团以及自然法观念的阐述，以及对昂格尔所认为的法治的虚假性的叙述，有三小点：对法治两个前提假定的否定、法治从来就没有消除社会中的奴役和不平等以及福利国家对法治的消解。 第二部分是对昂格尔的论证过程中的不严谨性做出的批判。包括昂格尔所使用的概念的不严谨性、昂格尔在论述中国法治问题上出现的误解以及对昂格尔作为论据之一的福利国家论述的不准确性。 第三部分是对昂格尔混淆理想和现实的批判。自由主义法治在很多自由主义者眼中也只是一种理论而已，而昂格尔却把它当成了一种实际状态，因现实社会中法治存在的弊病而对其批判。但是昂格尔自身提倡的“超自由主义”国家又何尝不是一种理想的期望呢？ 第四部分是对昂格尔的现实之批判。法治仍是我们现代社会发展所需要的，现代法治也给人类社会带来了很多有益成果，其法治的价值意义更是不可忽视的，是和现代文明相伴随的，所以说现代法治还是难以超越的。 第五部分是理论联系实际的部分。在分析了昂格尔的法治批判理论之后，在昂格尔的启示之下，我们中国该走哪种法治之路，这是理论界和实践界都在关注的问题。作者在这结语部分也只是进行了一些浅薄的探讨。
[Abstract]:Legal order is a very important concept in Unger's Law in Modern Society. In a lax sense, "legal order" is also called "rule of law". Unger generalizes the legal types that have emerged in human society as customary law, bureaucratic law and legal order, among which "legal order" or "rule of law" is unique to western liberal society. In the view of the mainstream law, the rule of law is the best social governance method of human society so far, but Unger does not think so. In this book, Unger discusses the falsehood of the rule of law and boldly predicts the crisis of its disintegration. He believes that the liberal rule of law is only a false myth, it can not eliminate the daily life of inequality and unreasonable attachment, so can not solve the order of human society. Although his theory is novel and impactful, his thesis is grand and far-sighted, but his critical theory of rule of law still has some defects. This article is a counter-criticism to his critical theory of rule of law. The full text is divided into five parts. The text is about 23000 words. The first part is an introduction to the thesis, which is a brief overview of Angell's critical theory of the rule of law, including the elaboration of the concept of the pluralistic interest group and the concept of natural law, which Unger considers the emergence of the modern rule of law. There are three little points in the narration of the falsehood of the rule of law that Unger thinks: the negation of the two premises of the rule of law, the rule of law has never eliminated slavery and inequality in the society and the welfare state has dispelled the rule of law. The second part is the criticism of Unger's inaccuracies in the process of argumentation. Including the concept used by Unger is not rigorous, the misunderstanding of Angell's discussion on the Chinese rule of law and the inaccuracy of the discussion on the welfare state as one of his arguments. The third part is the criticism of Angell's confusion of ideal and reality. The liberal rule of law is only a theory in the eyes of many liberals, but Unger regards it as a kind of actual state, criticizing it because of the defects of the rule of law in the real society. But is Unger's own "ultra-liberal" country not an ideal expectation? The fourth part is the criticism of Unger's reality. The rule of law is still necessary for the development of our modern society, and the modern rule of law has brought a lot of beneficial results to the human society. The value of the rule of law cannot be ignored, and it is accompanied by modern civilization. Therefore, the modern rule of law is difficult to surmount. The fifth part is the combination of theory and practice. After analyzing Angell's critical theory of rule of law, under the enlightenment of Angell, what kind of road of rule of law should we take in China, which is a problem that both theorists and practitioners are concerned about. In the conclusion part, the author only makes some shallow discussions.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D90-052
本文编号：2188467
[Abstract]:Legal order is a very important concept in Unger's Law in Modern Society. In a lax sense, "legal order" is also called "rule of law". Unger generalizes the legal types that have emerged in human society as customary law, bureaucratic law and legal order, among which "legal order" or "rule of law" is unique to western liberal society. In the view of the mainstream law, the rule of law is the best social governance method of human society so far, but Unger does not think so. In this book, Unger discusses the falsehood of the rule of law and boldly predicts the crisis of its disintegration. He believes that the liberal rule of law is only a false myth, it can not eliminate the daily life of inequality and unreasonable attachment, so can not solve the order of human society. Although his theory is novel and impactful, his thesis is grand and far-sighted, but his critical theory of rule of law still has some defects. This article is a counter-criticism to his critical theory of rule of law. The full text is divided into five parts. The text is about 23000 words. The first part is an introduction to the thesis, which is a brief overview of Angell's critical theory of the rule of law, including the elaboration of the concept of the pluralistic interest group and the concept of natural law, which Unger considers the emergence of the modern rule of law. There are three little points in the narration of the falsehood of the rule of law that Unger thinks: the negation of the two premises of the rule of law, the rule of law has never eliminated slavery and inequality in the society and the welfare state has dispelled the rule of law. The second part is the criticism of Unger's inaccuracies in the process of argumentation. Including the concept used by Unger is not rigorous, the misunderstanding of Angell's discussion on the Chinese rule of law and the inaccuracy of the discussion on the welfare state as one of his arguments. The third part is the criticism of Angell's confusion of ideal and reality. The liberal rule of law is only a theory in the eyes of many liberals, but Unger regards it as a kind of actual state, criticizing it because of the defects of the rule of law in the real society. But is Unger's own "ultra-liberal" country not an ideal expectation? The fourth part is the criticism of Unger's reality. The rule of law is still necessary for the development of our modern society, and the modern rule of law has brought a lot of beneficial results to the human society. The value of the rule of law cannot be ignored, and it is accompanied by modern civilization. Therefore, the modern rule of law is difficult to surmount. The fifth part is the combination of theory and practice. After analyzing Angell's critical theory of rule of law, under the enlightenment of Angell, what kind of road of rule of law should we take in China, which is a problem that both theorists and practitioners are concerned about. In the conclusion part, the author only makes some shallow discussions.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D90-052
【参考文献】
相关期刊论文 前2条
1 李其瑞;批判中的法学与法学中的批判[J];甘肃政法学院学报;2004年04期
2 汪太贤;人文精神与西方法治传统[J];政法论坛;2001年03期
本文编号：2188467
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