近代抑或中世纪：英国法治形成的时间问题探析
发布时间：2018-09-12 05:07
【摘要】： 英国是世界上第一个民族国家,也是第一个宪政国家,英国的法治与宪政一直是国内外学术界研究的焦点问题。学者们从各个角度探析了英国法治形成的原因与机制,但是纵观学术界,虽然对于英国法治问题的研究著作已经汗牛充栋,但是对于一些基本问题,有时经常不能达成一致形成统一意见。英国法治形成的时间问题就是这样一个问题。 研究英国法治形成的时间问题不可避免的要详细考察英国法治形成的机制问题,离不开对中世纪和近代英国经济、法制、政治和思想等各个领域的基本情况和变化的考察。因为法治的形成正是在这些历史进程当中完成的,只有把形成机制搞清楚,明确了重大的历史事件发生的时间,重大经济和政治现象的发展过程和结果,才能准确的界定英国法治确定的时间。 中世纪的城市虽然孕育了市民社会的诸多制度特征和观念意识,而且某些地方的城市发展程度也达到了相当的高度,但是,近代西方市民社会绝不仅仅是对中世纪欧洲城市文明的简单继承和发展。 在经济领域,当货币经济在近代早期的英国生根发芽开始生长的时候,个人自由意识增强,人们对于传统秩序的不满日益加深传统。中世纪晚期英国传统秩序再次引发变革的危机。由于货币经济的需要,中世纪末期的英国社会呼唤公平、公正的法治新秩序。 在法律制度和司法制度领域,近代英国也发生重要变化。普通法得到进一步发展,法律保障社会发展和个人自由的能力增强。英国通过将国王财产权与统治权分开、将经济和政治分离开来,实现了普通法院的司法独立。普通法和各级法院等司法机构在私人领域起到全面的主导地位,王权等封建权力被排除在私人领域之外。经济生活中的法治秩序,保障了个体经济自由,使市场成为获取财富的主要方式。司法独立对于英国法治社会的形成具有重要意义。 在政治领域,议会通过长期的与王权博弈,不断地争取财政和税赋的权力。在十七世纪宪政革命之后,英国议会代议制在英国基本确立下来。议会在通过立法决定国家税收的同时,还通过对政府的直接监督和控制来审计国家的财政支出。英国通过议会代议制制约了国王的专制,维持了国家政治生活中多数人的参与和保护私人财富之间的宪政平衡,保证了市民社会中每个人的私有财产不受侵犯。议会代议制的实现是英国民族国家制度建构的重要组成部分,它确立了政治生活中的宪政秩序。对于保障法治社会的正常运转,提供了政治保障。 在法律理论和思想意识领域,英国的法治理论家们在吸收自然法理论的传统的基础上,以理性和个人主义为依托,与王权和教权展开理论上的搏斗,经由霍布斯、洛克、休谟、布莱克斯通等伟大思想家的努力,逐渐构建起来具有鲜明英国特色的法学理论。英国法治理论的成熟,同样也是英国法治社会走向成熟和稳定的标志。 因此,可以毫无疑问的确信,英国的法治是在十七至至十八世纪这段近代历史时期内形成的。英国法治社会形成后极大地促进了英国经济社会的发展,英国法治社会形成历史,充满了冲突和博弈,法治建立的历史,就是个人争取自由的历史,就是英国从传统走向现代的历史!
[Abstract]:Britain is the first nation-state and the first constitutional country in the world. The rule of law and constitutionalism in Britain have always been the focus of academic research at home and abroad. But on some basic issues, it is often impossible to reach a consensus to form a consensus. The question of when the rule of law was established in Britain is one of these.
To study the time of the formation of the rule of law in Britain, it is inevitable to study the mechanism of the formation of the rule of law in Britain in detail. It is inseparable from the investigation of the basic conditions and changes in the fields of economy, law, politics and ideology in the Middle Ages and modern Britain. Only by making clear the timing of major historical events, the development process and results of major economic and political phenomena, can we accurately define the time set by the rule of law in Britain.
Although medieval cities gave birth to many institutional features and concepts of civil society, and the degree of urban development in some places has reached a considerable height, modern western civil society is by no means a simple inheritance and development of medieval European urban civilization.
In the economic sphere, when the monetary economy took root and began to grow in early modern Britain, the sense of individual freedom was enhanced, and people's discontent with the traditional order was deepening. A just new order of the rule of law.
In the field of legal system and judicial system, great changes have taken place in modern Britain. Common law has been further developed and the ability of law to guarantee social development and individual freedom has been enhanced. The legal order in economic life guarantees individual economic freedom and makes the market the main way to obtain wealth. Judicial independence is of great significance to the formation of the British society ruled by law.
In the political sphere, Parliament strives for the power of Finance and taxation through a long-term game with the monarchy. After the constitutional revolution in the seventeenth century, the representative system of the British Parliament was basically established in Britain. Britain has restricted the king's autocracy through parliamentary representative system, maintained the constitutional balance between the participation of the majority in national political life and the protection of private wealth, and guaranteed the inviolability of private property of everyone in civil society. The constitutional order in life provides political guarantee for ensuring the normal operation of the rule of law society.
In the field of legal theory and ideology, on the basis of absorbing the tradition of natural law theory and relying on rationality and individualism, British legal theorists launched a theoretical struggle with monarchy and religion. Through the efforts of Hobbes, Locke, Hume, Blackstone and other great thinkers, they gradually constructed a distinctive British identity. The maturity of British legal theory is also a sign of the maturity and stability of British legal society.
Therefore, it is undoubtedly certain that the rule of law in Britain was formed during the modern period from the seventeenth to eighteenth centuries. The formation of the rule of law society in Britain has greatly promoted the development of the British economy and society. The formation of the rule of law society in Britain has a history full of conflicts and games. The history of the establishment of the rule of law is the history of individual striving for freedom. History is the history of Britain moving from tradition to modernity.
【学位授予单位】：河南大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D956.1
本文编号：2237999
[Abstract]:Britain is the first nation-state and the first constitutional country in the world. The rule of law and constitutionalism in Britain have always been the focus of academic research at home and abroad. But on some basic issues, it is often impossible to reach a consensus to form a consensus. The question of when the rule of law was established in Britain is one of these.
To study the time of the formation of the rule of law in Britain, it is inevitable to study the mechanism of the formation of the rule of law in Britain in detail. It is inseparable from the investigation of the basic conditions and changes in the fields of economy, law, politics and ideology in the Middle Ages and modern Britain. Only by making clear the timing of major historical events, the development process and results of major economic and political phenomena, can we accurately define the time set by the rule of law in Britain.
Although medieval cities gave birth to many institutional features and concepts of civil society, and the degree of urban development in some places has reached a considerable height, modern western civil society is by no means a simple inheritance and development of medieval European urban civilization.
In the economic sphere, when the monetary economy took root and began to grow in early modern Britain, the sense of individual freedom was enhanced, and people's discontent with the traditional order was deepening. A just new order of the rule of law.
In the field of legal system and judicial system, great changes have taken place in modern Britain. Common law has been further developed and the ability of law to guarantee social development and individual freedom has been enhanced. The legal order in economic life guarantees individual economic freedom and makes the market the main way to obtain wealth. Judicial independence is of great significance to the formation of the British society ruled by law.
In the political sphere, Parliament strives for the power of Finance and taxation through a long-term game with the monarchy. After the constitutional revolution in the seventeenth century, the representative system of the British Parliament was basically established in Britain. Britain has restricted the king's autocracy through parliamentary representative system, maintained the constitutional balance between the participation of the majority in national political life and the protection of private wealth, and guaranteed the inviolability of private property of everyone in civil society. The constitutional order in life provides political guarantee for ensuring the normal operation of the rule of law society.
In the field of legal theory and ideology, on the basis of absorbing the tradition of natural law theory and relying on rationality and individualism, British legal theorists launched a theoretical struggle with monarchy and religion. Through the efforts of Hobbes, Locke, Hume, Blackstone and other great thinkers, they gradually constructed a distinctive British identity. The maturity of British legal theory is also a sign of the maturity and stability of British legal society.
Therefore, it is undoubtedly certain that the rule of law in Britain was formed during the modern period from the seventeenth to eighteenth centuries. The formation of the rule of law society in Britain has greatly promoted the development of the British economy and society. The formation of the rule of law society in Britain has a history full of conflicts and games. The history of the establishment of the rule of law is the history of individual striving for freedom. History is the history of Britain moving from tradition to modernity.
【学位授予单位】：河南大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D956.1
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