布迪厄司法场域理论探析
发布时间：2019-06-26 09:50
【摘要】：从社会理论的独特视角出发解读法律，有助于建立对法律及其运行环境的深刻理解。法国社会学家布迪厄以其体系完备、颇具解释力的场域理论，，运用场域、资本、惯习、符号权力等独特的理论分析工具，对司法场域进行了细致的分析，从社会理论的视角对什么是法律、法律的正当性等法理学核心问题做出了回答。当前法学界对布迪厄的研究尚不充分，应积极挖掘布迪厄理论的法理学意义。 本文除引论和结语外，共分四部分。 第一部分阐述布迪厄提出司法场域的理论意图。分析法学派视法律为独立的规则实体，试图构建“纯粹法律科学”，社会法学派则把法律视作一种实际活动、活的规范，认为在与政治、经济、社会、文化等因素的互动关系中才能正确理解法律。布迪厄认为这两种理解法律的方式都有失偏颇，提出从司法场域出发理解法律。法律产生、运作于独立的社会空间（司法场域），必须分析司法场域的结构，将法律置于司法场域中才能认清法律的本质与运作方式。布迪厄对司法场域的分析立足于其独特的社会理论体系，运用了“场域”“惯习”“资本”“符号权力”等概念，试图建立超越主客观二元对立的关于法律实践的总体性理解。 第二部分分析司法场域的构成，描述其运作机制。司法场域是法律产生并运行于其中的社会空间，具有自身独特运作逻辑。司法场域的自主性是法律独立性的基础，这体现为法律规范体系、法律语言、司法过程各方面。司法场域内占据不同位置的行动者之间拥有不同形式和数量的资本，并在惯习的作用下行动、斗争，推动了司法场域的变迁。 第三部分研究司法场域中的法律。现代社会，法律是一种符号权力，能够通过言辞行为改变社会结构。法律符号权力的现实基础在于其与社会权力结构的一致性，而法律的普遍化、中立化等形式理性为法律提供了合法性论证。布迪厄从场域的视角出发对什么是法律和法律的正当化机制进行了解析。 第四部分是对司法场域理论的评价。布迪厄司法场域理论是其社会学理论在法律领域的具体运用，力求从场域出发探寻法律的实践逻辑。提出构建一个独立的社会空间（司法场域），由此出发对法律的本质及其运作逻辑、合法化手段等进行了分析，区分了理论逻辑与实践逻辑。并倡导反思性、关系主义思维的研究态度，具有很强的启示意义。 结语对本文的思路进行了梳理和总结。司法场域理论以较短的理论篇幅，运用独特的分析工具，对什么是法律与法律的正当性问题做出了有特色、有解释力的回答。布迪厄的研究方法也很独特，对理论逻辑与实践逻辑的区分、反思性的研究态度、关系主义的研究方法，都为我们解决两大法学元问题（如何理解法律与如何研究法学）启示颇多。
[Abstract]:Interpreting the law from the unique perspective of social theory is helpful to establish a profound understanding of the law and its operating environment. French sociologist Boudieu, with his well-systematic and explanatory field theory, makes a detailed analysis of the judicial field by using the unique theoretical analysis tools such as field, capital, habit, symbolic power and so on, and answers the core questions of jurisprudence, such as what is law and the legitimacy of law from the perspective of social theory. At present, the research on Bourdieu is not enough in the field of law, so we should actively excavate the legal significance of Bourdieu's theory. In addition to the introduction and conclusion, this paper is divided into four parts. The first part expounds the theoretical intention of Boudieu to put forward the judicial field. The analytical law school regards law as an independent regular entity and tries to construct "pure legal science". The school of social law regards law as a kind of practical activity and living norm, and holds that only in the interactive relationship with political, economic, social, cultural and other factors can the law be understood correctly. Boudieu believes that these two ways of understanding the law are biased and puts forward to understand the law from the judicial field. The law comes into being and operates in an independent social space (judicial field). It is necessary to analyze the structure of the judicial field and place the law in the judicial field in order to recognize the essence and mode of operation of the law. Boudieu's analysis of the judicial field is based on his unique social theoretical system, and uses the concepts of "field", "habit", "capital" and "symbolic power" to try to establish a general understanding of legal practice that transcends the subjective and objective binary opposition. The second part analyzes the composition of the judicial field and describes its operating mechanism. The judicial field is the social space in which the law comes into being and runs, which has its own unique operation logic. The autonomy of judicial field is the basis of legal independence, which is embodied in legal norm system, legal language and judicial process. The actors who occupy different positions in the judicial field have different forms and quantities of capital, and act and struggle under the action of habit, which promotes the change of the judicial field. The third part studies the law in the judicial field. In modern society, law is a kind of symbolic power, which can change the social structure through words and deeds. The realistic basis of legal symbolic power lies in its consistency with the structure of social power, and the universality and neutrality of law provide legitimacy demonstration for law. From the perspective of the field, Budieu analyzed what is the law and the legitimate mechanism of the law. The fourth part is the evaluation of judicial field theory. Boudieu's judicial field theory is the concrete application of his sociological theory in the field of law, and tries to explore the practical logic of law from the field. This paper puts forward the construction of an independent social space (judicial field), from which the essence of law, its operational logic and the means of legalization are analyzed, and the theoretical logic and practical logic are distinguished. It is of great significance to advocate the research attitude of reflective and relational thinking. The conclusion combs and summarizes the ideas of this paper. With a short theoretical length and a unique analytical tool, the judicial field theory gives a characteristic and explanatory answer to the question of what is law and the legitimacy of law. Boudieu's research methods are also very unique. The distinction between theoretical logic and practical logic, reflective research attitude and relational research methods all enlighten us to solve the two legal meta-problems (how to understand law and how to study 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】：D90-052
本文编号：2506103
[Abstract]:Interpreting the law from the unique perspective of social theory is helpful to establish a profound understanding of the law and its operating environment. French sociologist Boudieu, with his well-systematic and explanatory field theory, makes a detailed analysis of the judicial field by using the unique theoretical analysis tools such as field, capital, habit, symbolic power and so on, and answers the core questions of jurisprudence, such as what is law and the legitimacy of law from the perspective of social theory. At present, the research on Bourdieu is not enough in the field of law, so we should actively excavate the legal significance of Bourdieu's theory. In addition to the introduction and conclusion, this paper is divided into four parts. The first part expounds the theoretical intention of Boudieu to put forward the judicial field. The analytical law school regards law as an independent regular entity and tries to construct "pure legal science". The school of social law regards law as a kind of practical activity and living norm, and holds that only in the interactive relationship with political, economic, social, cultural and other factors can the law be understood correctly. Boudieu believes that these two ways of understanding the law are biased and puts forward to understand the law from the judicial field. The law comes into being and operates in an independent social space (judicial field). It is necessary to analyze the structure of the judicial field and place the law in the judicial field in order to recognize the essence and mode of operation of the law. Boudieu's analysis of the judicial field is based on his unique social theoretical system, and uses the concepts of "field", "habit", "capital" and "symbolic power" to try to establish a general understanding of legal practice that transcends the subjective and objective binary opposition. The second part analyzes the composition of the judicial field and describes its operating mechanism. The judicial field is the social space in which the law comes into being and runs, which has its own unique operation logic. The autonomy of judicial field is the basis of legal independence, which is embodied in legal norm system, legal language and judicial process. The actors who occupy different positions in the judicial field have different forms and quantities of capital, and act and struggle under the action of habit, which promotes the change of the judicial field. The third part studies the law in the judicial field. In modern society, law is a kind of symbolic power, which can change the social structure through words and deeds. The realistic basis of legal symbolic power lies in its consistency with the structure of social power, and the universality and neutrality of law provide legitimacy demonstration for law. From the perspective of the field, Budieu analyzed what is the law and the legitimate mechanism of the law. The fourth part is the evaluation of judicial field theory. Boudieu's judicial field theory is the concrete application of his sociological theory in the field of law, and tries to explore the practical logic of law from the field. This paper puts forward the construction of an independent social space (judicial field), from which the essence of law, its operational logic and the means of legalization are analyzed, and the theoretical logic and practical logic are distinguished. It is of great significance to advocate the research attitude of reflective and relational thinking. The conclusion combs and summarizes the ideas of this paper. With a short theoretical length and a unique analytical tool, the judicial field theory gives a characteristic and explanatory answer to the question of what is law and the legitimacy of law. Boudieu's research methods are also very unique. The distinction between theoretical logic and practical logic, reflective research attitude and relational research methods all enlighten us to solve the two legal meta-problems (how to understand law and how to study 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】：D90-052
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相关期刊论文 前3条
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