伯尔曼世界共同法理论探究
发布时间：2019-06-03 16:31
【摘要】：随着经济全球化的不断深入，国家之间的交往愈加密切，建立于经济基础之上的各国法律文化的交流也越来越频繁，这使得法律的发展趋向世界化、全球化。美国法学家伯尔曼对此种现状进行了描述并且以自己的一套独特理论向世人们展现出了一幅美好的世界图景，由此而产生了伯尔曼世界共同法理论。 伯尔曼是当代西方著名的法学家，他的法学思想充满了对现实的关怀和对未来的祈望，他的法学理论丰富深刻，别具一格。本文试图沿着伯尔曼理论的一般逻辑简单勾勒出他法学思想中的世界共同法理论。单从逻辑角度来看，伯尔曼的世界共同法理论最先是以一种西方社会“危机”背景为起点的，通过对这种危机的化解经由对西方法律传统的恢复、思想领域内的革新、综合法学的建立及辩证统一的法律与宗教制度体的形成最终使世界共同法得以诞生。伯尔曼所在时代的世界法有着一定的特征和现实基础，也有其所面临的诸多困境，伯尔曼运用其独特的世界观与方法论来解释共同法发展的轨迹并试图解决其面临的困境。在谈到具体构造世界共同法时，伯尔曼又提出了一系列的方法和措施，力求从最根本上解决阻碍世界法产生和发展的诸多问题。这些举措具体包括重塑一个能引导世界法发展的西方法律传统，破除思想“二元论”主义，法学教育领域的改革以及建立一个一体化的综合法学理论。在提出这些解救措施之后，伯尔曼最终强调的是将法律与宗教辩证的综合起来，，并以这种辩证综合的制度体为未来的世界共同法提供制度与信仰体系，从而使世界法健康发展并逐步完善。伯尔曼世界法理论是有其内在依据的，然而，通过认真研读伯尔曼有关世界共同法的诸多相关理论，也能够找到值得反思的问题，诸如西方社会法律的危机是否真的是一种灾难性的危机？这种危机的背后又是什么？以及综合法学理论是否能真的建立起来，通过对伯尔曼理论的深刻反思，读者会惊奇发现其世界法理论事实上是以宗教为原始起点和最终落脚点的。 本文便是按照以上逻辑来试图分析有关伯尔曼世界法的相关理论，按照一般的行文逻辑结构分成四个部分，第一个部分重点描述伯尔曼的世界共同法理论提出的背景，即是何种现实原因让他提出世界共同法这一理论。第二部分着重概述世界共同法理论的基本问题，这其中包含世界法的生成基础和伯尔曼独特的方法论。第三个部分介绍了伯尔曼对构建世界共同法所采取的几点措施，此部分内容是伯尔曼世界共同法理论的重点。最后一部分是对伯尔曼有关世界共同法理论的部分反思，通过对其危机理论和世界法基础理论的反思来试图更加深刻的剖析伯尔曼的世界法理论。
[Abstract]:With the deepening of economic globalization, the exchanges between countries are getting closer and closer, and the exchange of legal culture based on the economic base is becoming more and more frequent, which makes the development of law tend to globalization. Berman, an American jurist, described this situation and showed a beautiful picture of the world with his own set of unique theories, which resulted in Berman's theory of world common law. Berman is a famous contemporary western jurist. His legal thought is full of concern for reality and prayer for the future. His legal theory is rich and profound and unique. This paper attempts to outline the theory of world common law in his legal thought according to the general logic of Berman's theory. From a logical point of view alone, Berman's theory of world common law was first based on the background of a "crisis" in western society. Through the restoration of the western legal tradition and the innovation in the ideological field, The establishment of comprehensive law and the formation of dialectical unity of law and religious system finally led to the birth of world common law. The world law of Berman's time has certain characteristics and realistic foundation, as well as many difficulties he faces. Berman uses his unique world outlook and methodology to explain the track of the development of common law and try to solve the dilemma he faces. When talking about the concrete construction of the common law of the world, Berman put forward a series of methods and measures to solve many problems that hinder the emergence and development of the law of the world. These measures include reshaping a western legal tradition that can guide the development of world law, breaking away from dualism, reforming in the field of legal education and establishing an integrated comprehensive legal theory. After putting forward these rescue measures, Berman finally emphasized the dialectical integration of law and religion, and provided the system and belief system for the world common law in the future. In order to make the world law develop healthily and gradually perfect. Berman's theory of world law has its inherent basis. However, by carefully studying Berman's many related theories about world common law, we can also find some problems worthy of reflection. Is the crisis of social law in the West really a catastrophic crisis? What is behind this crisis? And whether the comprehensive legal theory can really be established, through the profound reflection on Berman's theory, readers will be surprised to find that his theory of world law is in fact based on religion as the original starting point and final foothold. According to the above logic, this paper attempts to analyze the relevant theories of Berman's world law, which is divided into four parts according to the general logical structure of the text. The first part focuses on the background of Berman's theory of world common law. That is, what practical reason led him to put forward the theory of world common law. The second part focuses on the basic problems of the theory of world common law, which includes the formation basis of world law and Berman's unique methodology. The third part introduces some measures taken by Berman to construct the world common law, which is the focus of Berman's theory of world common law. The last part is a part of Berman's reflection on the theory of world common law, and tries to analyze Berman's theory of world law more deeply through the reflection of his crisis theory and the basic theory of world 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
本文编号：2492071
[Abstract]:With the deepening of economic globalization, the exchanges between countries are getting closer and closer, and the exchange of legal culture based on the economic base is becoming more and more frequent, which makes the development of law tend to globalization. Berman, an American jurist, described this situation and showed a beautiful picture of the world with his own set of unique theories, which resulted in Berman's theory of world common law. Berman is a famous contemporary western jurist. His legal thought is full of concern for reality and prayer for the future. His legal theory is rich and profound and unique. This paper attempts to outline the theory of world common law in his legal thought according to the general logic of Berman's theory. From a logical point of view alone, Berman's theory of world common law was first based on the background of a "crisis" in western society. Through the restoration of the western legal tradition and the innovation in the ideological field, The establishment of comprehensive law and the formation of dialectical unity of law and religious system finally led to the birth of world common law. The world law of Berman's time has certain characteristics and realistic foundation, as well as many difficulties he faces. Berman uses his unique world outlook and methodology to explain the track of the development of common law and try to solve the dilemma he faces. When talking about the concrete construction of the common law of the world, Berman put forward a series of methods and measures to solve many problems that hinder the emergence and development of the law of the world. These measures include reshaping a western legal tradition that can guide the development of world law, breaking away from dualism, reforming in the field of legal education and establishing an integrated comprehensive legal theory. After putting forward these rescue measures, Berman finally emphasized the dialectical integration of law and religion, and provided the system and belief system for the world common law in the future. In order to make the world law develop healthily and gradually perfect. Berman's theory of world law has its inherent basis. However, by carefully studying Berman's many related theories about world common law, we can also find some problems worthy of reflection. Is the crisis of social law in the West really a catastrophic crisis? What is behind this crisis? And whether the comprehensive legal theory can really be established, through the profound reflection on Berman's theory, readers will be surprised to find that his theory of world law is in fact based on religion as the original starting point and final foothold. According to the above logic, this paper attempts to analyze the relevant theories of Berman's world law, which is divided into four parts according to the general logical structure of the text. The first part focuses on the background of Berman's theory of world common law. That is, what practical reason led him to put forward the theory of world common law. The second part focuses on the basic problems of the theory of world common law, which includes the formation basis of world law and Berman's unique methodology. The third part introduces some measures taken by Berman to construct the world common law, which is the focus of Berman's theory of world common law. The last part is a part of Berman's reflection on the theory of world common law, and tries to analyze Berman's theory of world law more deeply through the reflection of his crisis theory and the basic theory of world 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
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