古罗马法治发达的动力机制探析及启示

发布时间：2018-05-08 21:03

本文选题：法律家 + 多元社会结构　；参考：《烟台大学》2009年硕士论文

【摘要】： 自近现代以来,许多国家不断地追求并实践着西方的法治理论,古罗马正是这些法治理论最古老的发源地之一,其法治文明处于当时世界的顶峰。关于法治发达的动力,其实许多学者已经关注,例如,美国法学家昂格尔在《现代社会中的法律》一书中,主张法治的形成得益于多元集团和自然法这两种历史条件。我国许多学者主张法治发达的动力是市场经济、民主政治和法治精神共同构成社会法治化的动力体系。具体到古罗马,有学者认为古罗马法治发达的基本动因是其商品经济的繁荣、自然法理论的指导、法学家的作用和罗马统治者对法治的重视。本文提出不同于上述学者观点,主要是运用结构分析的方法集中研究古罗马法律家和多元社会结构。我们重新翻开西方古代历史,回顾古罗马法治的辉煌时代,探究古罗马法治发达的动力机制,通过研究古罗马法律家活动和多元社会结构,得出两者是古罗马法治发达的动力元素,法律家与多元社会结构的互动构成了古罗马法治发达的动力机制。在古罗马这样的法治发达的动力机制框架下,我们重新审视建国以来中国的法治实践,分析我国法律家的法治实践和社会结构及人民,发现我国目前建构的法治不能发挥应有的效能源于法治发达动力机制的缺乏。但是我国完善自身的法治动力机制要结合本国国情,不可能对古罗马法治动力机制进行复制重构。
[Abstract]:Since modern times, many countries have been pursuing and practicing the western theory of rule of law. Ancient Rome was one of the oldest birthplaces of these theories, and its civilization of rule of law was at the peak of the world at that time. Many scholars have paid attention to the development of the rule of law. For example, in his book Law in Modern Society, the American jurist Unger argues that the formation of the rule of law is due to the two historical conditions of pluralistic group and natural law. Many scholars in China hold that market economy is the driving force for the development of the rule of law, and democratic politics and the spirit of rule by law together constitute the power system of social rule by law. As far as ancient Rome is concerned, some scholars think that the basic reason for the rule of law in ancient Rome is the prosperity of its commodity economy, the guidance of natural law theory, the role of jurists and the importance of Roman rulers to the rule of law. In this paper, different from the view of the above scholars, we mainly use the method of structural analysis to study the ancient Roman legalists and the pluralistic social structure. We rediscover the ancient history of the West, review the glorious era of the rule of law in ancient Rome, explore the dynamic mechanism of the development of the rule of law in ancient Rome, and by studying the activities of ancient Roman legalists and the pluralistic social structure, It is concluded that both of them are the driving elements of the development of the rule of law in ancient Rome, and the interaction between the jurists and the pluralistic social structure constitutes the dynamic mechanism of the development of the rule of law in ancient Rome. Under the framework of the dynamic mechanism of the development of the rule of law, such as ancient Rome, we have re-examined the practice of the rule of law in China since the founding of the people's Republic of China, and analyzed the practice of the rule of law, the social structure and the people of our country It is found that the lack of dynamic mechanism for the development of the rule of law is the reason why the rule of law cannot play its due effect. However, it is impossible for our country to duplicate and reconstruct the dynamic mechanism of rule of law in ancient Rome.
【学位授予单位】：烟台大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D904.1

【参考文献】