柯克法治思想研究

发布时间：2018-05-15 06:23

本文选题：柯克 + 法治　；参考：《东北师范大学》2010年博士论文

【摘要】： 英国是世界上最早走向现代法治社会的国家,柯克法治思想在这一历史进程中起到了至关重要的作用。因此,在解读柯克的著作和分析其司法实践以及议会活动的基础上,系统研究柯克法治思想既能够从理论上加深我们对法治的理解,又有利于理解英国宪政的确立以及现代法治社会的形成。柯克的法治思想包括普通法至上思想、“王在法下”思想、议会主权思想以及臣民自由与权利思想四个部分,其中普通法至上思想是柯克法治思想的根基,贯穿于“王在法下”思想、议会主权思想以及臣民自由与权利思想之中。在实践中,普通法至上是实现“王在法下”、确立议会主权以及维护臣民自由与权利的前提和保障。柯克法治思想的核心即为维护普通法至上的地位,以普通法限制国王的权力,保障臣民的权利。在法律之下对权力的约束和对权利的保障正是英国现代宪政的本质。柯克的法治思想成为英国现代法治社会和宪政发展的重要思想渊源。全文分为三部分：第一部分为引言,主要阐述论文选题的意义,总结国内外学者对该选题的研究状况,并阐明本文要研究的问题与方法以及文献基础。第二部分是论文的主体部分,一共五章,其中第一章论述柯克的普通法至上思想,主要阐述普通法的发展历程、普通法的法律理性以及柯克对特权法庭的批判与抵制等内容；第二章论述柯克的“王在法下”思想,主要阐述英国有限王权与法治传统的形成,柯克在分析《大宪章》的过程中所阐明的“王在法下”思想；第三章论述柯克的议会主权思想,主要阐述议会的至尊地位、上下两院的分立与“王在议会”原则的形成以及议员的自由与权利；第四章论述柯克的臣民自由与权利思想,主要阐述臣民的生产与贸易自由、人身自由以及财产权利。第五章论述柯克法治思想的历史影响,主要阐述在柯克法治思想的影响下,议会与普通法职业共同体与专制王权进行了长期的斗争,最终成功地推动了“光荣革命”的爆发,建立了君主立宪政体,确立了法官和法庭的独立地位。从此,英国走向了现代法治社会。第三部分是结论,对柯克的法治思想进行总体的论述,分析柯克法治思想的特点、发展演变及其历史地位和影响。
[Abstract]:The thought of Kirk's rule of law plays an important role in this historical process. Therefore, based on the interpretation of Kirk's works and the analysis of his judicial practice and parliamentary activities, a systematic study of Kirk's thoughts on the rule of law can deepen our understanding of the rule of law in theory. It also helps to understand the establishment of British constitutionalism and the formation of a modern society ruled by law. Kirk's thought of rule of law includes the thought of common law supremacy, the thought of "king under the law", the thought of parliamentary sovereignty, and the thought of freedom and right of subjects, among which the thought of supremacy of common law is the foundation of Kirk's thought of rule of law. It runs through the thought of "the king under the law", the thought of parliamentary sovereignty and the thought of subjects' freedom and rights. In practice, the supremacy of common law is the premise and guarantee to realize the "king under the law", to establish the sovereignty of parliament and to safeguard the freedom and rights of subjects. The core of Kirk's thought of rule of law is to maintain the supremacy of common law, to limit the power of kings and to protect the rights of subjects. The restriction and protection of power under the law is the essence of modern British constitutionalism. Kirk's thought of the rule of law has become an important ideological source of the modern rule of law society and constitutional development in England. The full text is divided into three parts: the first part is the introduction, mainly expounds the significance of the topic, summarizes the domestic and foreign scholars' research on the topic, and clarifies the problems and methods to be studied in this paper, as well as the literature basis. The second part is the main part of the paper, a total of five chapters, the first chapter discusses Kirk's thought of the supremacy of common law, mainly expounds the development of common law, the legal rationality of common law, as well as Kirk's criticism and resistance to privileged courts and so on. The second chapter discusses Kirk's "Wang under the law" thought, mainly elaborated the British limited Wang Quan and the rule of law tradition formation, Kirk in the analysis of "Magna Carta" in the process of "Wang under the law" thought; The third chapter discusses Kirk's thought of parliamentary sovereignty, mainly expounds the supreme position of parliament, the separation of upper and lower houses, the formation of the principle of "king in parliament", and the freedom and rights of members of parliament, and the fourth chapter discusses Kirk's thoughts of subjects' freedom and rights. The freedom of production and trade, personal freedom and property rights of subjects are expounded. The fifth chapter discusses the historical influence of Kirk's thought of rule of law. Under the influence of Kirk's thought of rule of law, Parliament and the professional community of common law struggle with autocratic Wang Quan for a long time, and finally successfully promote the outbreak of "glorious revolution". A constitutional monarchy was established, and the independence of judges and courts was established. Since then, Britain has moved towards a modern society ruled by law. The third part is the conclusion, discusses Kirk's thought of rule of law in general, analyzes the characteristics, development and evolution of Kirk's thought of rule of law and its historical position and influence.
【学位授予单位】：东北师范大学
【学位级别】：博士
【学位授予年份】：2010
【分类号】：D909.561

【参考文献】