论墨辩在法律中的适用
发布时间：2018-10-12 19:06
【摘要】：轴心时代之先秦时期，可谓百花灿放，众家争鸣，，逐形成吾国博大精深之文化遗产。而诸子百家中最趋近“科学思想”之墨家文化更是在先秦诸子论述中独树一帜，并成为当时两大“显学”之一。作为墨家文化重要组成部分的“墨辩”不仅作为其“三务”之一，更是成为了中国古代逻辑发源之一。自清末以降，墨辩虽得短暂复兴，但众家所论者多为墨辩拨正而叙，少有应用之论。此非墨家之主旨，墨家所言甚多，然中心者为“用”。职是之故，本文从“用”出发，将墨辩适用于法律之中。墨辩言推理，谈类故；而法学也说推理，要类故。然现今法学界，言必称泰希，词必曰欧美。法律适用理论亦染此风，却不知有墨家辩学之逻辑方法。本文在论述墨辩范围及其特征的基础上，还讨论墨辩何以能用于法律之中。在解决了上述问题后，本文拟介绍作为墨辩文化特色的三物论式在法律中的适用。在逻辑学界向来将其与西方的三段论相比较，各种优劣瑕瑜，尽显国人思维与西方人思维之不同。回顾墨子行迹，可知晓其非常重视“用”的观点，并追求将理论与实践之统一。对于如何将墨辩逻辑应用于司法实践，本文简单的列举了几则案例，并从古今两面进行考量。显学重光，故本文试图将墨辩应用于我国司法活动之中，一则明以墨释墨，以国人文化、历史释墨；二则拓展墨辩之研究，开阔法律适用之场域及视野。
[Abstract]:Axis era of the pre-Qin period, can be said to blossom, family contending, form our country's profound cultural heritage. The Mohist culture, which is the most close to the "scientific thought" among the hundred schools of thought, was unique in the pre-Qin school of thought and became one of the two "prominent schools" at that time. As an important part of Mohist culture, Mohism is not only one of its "three things", but also one of the origin of ancient Chinese logic. Since the end of the Qing Dynasty, Mohism has been a brief revival, but many scholars say that Mohism is correct and rarely applied. This is not the main idea of Mohism, Mohism says a lot, but the center for the "use." Therefore, this paper applies the Mohist argument to the law from the perspective of "use". Mo argument reasoning, talking about class reason, and law also said reasoning, to class reason. But now in the field of law, the word must be called Tahi, and the word must be called Europe and America. The theory of application of law also infects this trend, but does not know the logical method of Mohist argumentation. On the basis of discussing the scope and characteristics of Mohist argument, this paper also discusses why Mohist argument can be used in law. After solving the above problems, this paper will introduce the application of the three-thing theory in law as the characteristic of Mohist culture. Logic has always compared it with western syllogism, which shows the difference between Chinese thinking and Western thinking. Looking back on Mozi's practice, we can know that Mozi attaches great importance to "use" and seeks to unify theory with practice. As to how to apply Mohist logic to judicial practice, this paper simply enumerates several cases and considers them from ancient and modern aspects. Therefore, this paper tries to apply ink debate to the judicial activities of our country, one is to expound ink with ink, the other is to expand the study of ink debate and broaden the field and field of application of law.
【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】：D90-051
本文编号：2267270
[Abstract]:Axis era of the pre-Qin period, can be said to blossom, family contending, form our country's profound cultural heritage. The Mohist culture, which is the most close to the "scientific thought" among the hundred schools of thought, was unique in the pre-Qin school of thought and became one of the two "prominent schools" at that time. As an important part of Mohist culture, Mohism is not only one of its "three things", but also one of the origin of ancient Chinese logic. Since the end of the Qing Dynasty, Mohism has been a brief revival, but many scholars say that Mohism is correct and rarely applied. This is not the main idea of Mohism, Mohism says a lot, but the center for the "use." Therefore, this paper applies the Mohist argument to the law from the perspective of "use". Mo argument reasoning, talking about class reason, and law also said reasoning, to class reason. But now in the field of law, the word must be called Tahi, and the word must be called Europe and America. The theory of application of law also infects this trend, but does not know the logical method of Mohist argumentation. On the basis of discussing the scope and characteristics of Mohist argument, this paper also discusses why Mohist argument can be used in law. After solving the above problems, this paper will introduce the application of the three-thing theory in law as the characteristic of Mohist culture. Logic has always compared it with western syllogism, which shows the difference between Chinese thinking and Western thinking. Looking back on Mozi's practice, we can know that Mozi attaches great importance to "use" and seeks to unify theory with practice. As to how to apply Mohist logic to judicial practice, this paper simply enumerates several cases and considers them from ancient and modern aspects. Therefore, this paper tries to apply ink debate to the judicial activities of our country, one is to expound ink with ink, the other is to expand the study of ink debate and broaden the field and field of application of law.
【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】：D90-051
【参考文献】
相关期刊论文 前1条
1 胡光志;;通向人性的复兴与和谐之路——民法与经济法本质的另一种解读[J];现代法学;2007年02期
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