庞德法律要素理论研究
发布时间：2018-10-13 17:25
【摘要】： 庞德认为法律必须稳定,但不能静止不变。19世纪末20世纪初的美国社会正好处于一个剧烈变化的时期。既有的法律明显落后,既有的法律理论也明显僵化。于是,庞德对他所认为的僵化的法律理论,特别是兰德尔的形式主义,进行了严厉的批判,在此基础上提出了他的“社会学法学”的主张。 庞德的社会学法学内容丰富,对繁多的主题进行单个地把握会让人产生只见树木不见森林的感觉,也不能把握到庞德学说中各个主题的内在联系性。鉴于此,本文试图从庞德对法律要素的认识入手,建构一个认识庞德学说的简单框架。在庞德看来,“法律”一词在现实中有很多种用法。但他认为在司法实践中使用的“法律”指的是作为法律案件的权威裁判依据。依此权威,争议得以裁决,法律秩序得以维持。而这个意义上的“法律”是由律令、技术和理想三个要素组成的。其中律令要素和理想要素作为主体意义上的法律,他们共同形成了判决的权威依据；技术要素则是法律作用于案件事实的途径,依凭技术要素作用的发挥使得案件裁判得以进行。虽然技术要素对于案件裁判来说十分重要,但由于技术要素实际上一个程序性要素,不是本文的分析重点,也不会对本文的结论产生实质性的影响。故本文将重点放在了对律令要素和理想要素这两个要素的分析上。 律令要素是法律要素中的重要组成部分,基本上由规则、原则、概念和标准构成。庞德认为律令要素的权威离不开权力的支撑,但也绝对不是简单地依靠权力。律令要素的真正权威是什么呢?庞德并没有明确地说明。他认为法律如果正在履行着(而且很好地履行着)排解各种相互冲突和重迭的人类需求的任务,那么我们就依照法律来指导行动就可以了。庞德认为历史上有很多地方的法官都有很大的自由裁量权,但这种自由裁量权越来越受到限制,依据律令要素裁判成为了大的趋势。但自由裁量是不可能完全避免的,而且这对于裁判来说是必要的。 理想要素是指有关法律目的以及根据这种法律目的何种规则应当成为法律律令的哲学的、政治的和伦理的观念体。而这种观念体在庞德这里脱掉了自然法理论的普适主义,而穿上一种谦逊的地方主义,如庞德所言,最终归结为一定时间和地点的社会秩序的图画。理想要素主要包括社会财富最大化的功利原则、庞 德总结的法律假设以及社会共同的文化、方向和目标。庞德希望理想要素能指导司法实践,对自由裁量权起到一定的制约作用。这也反映了庞德对“价值共识”破裂的担忧。
[Abstract]:Pound believed that law must be stable, but not static. American society in the late 19th century and early 20th century was in a period of dramatic change. The existing law is obviously backward, the existing legal theory is also obviously ossified. So pound criticized his rigid legal theory, especially Randall's formalism, on the basis of which he put forward his "sociological jurisprudence". Pound's sociological jurisprudence is rich in content, so a single grasp of a variety of topics will make people feel that trees do not see the forest, nor can they grasp the intrinsic connection of various themes in pound's theory. In view of this, this paper attempts to construct a simple framework of understanding pound's theory from pound's understanding of legal elements. In pound's view, the word "law" has many uses in reality. But he thinks that the "law" used in judicial practice refers to the authoritative basis of legal cases. By this authority, disputes can be adjudicated and the legal order maintained. In this sense, "law" is composed of three elements: law, technology and ideal. Among them, the legal elements and ideal elements are the law in the sense of subject, and together they form the authoritative basis of the judgment, while the technical elements are the way for the law to act on the facts of the case. Depending on the function of the technical elements, the adjudication of cases can be carried out. Although the technical elements are very important to the adjudication of cases, because the technical elements are in fact a procedural element, they are not the focus of this paper, nor will they have a substantial impact on the conclusion of this paper. Therefore, this paper focuses on the analysis of the two elements: the law element and the ideal factor. The element of law is an important part of the element of law, which is basically composed of rules, principles, concepts and standards. Pound believes that the authority of the elements of law can not be supported by power, but certainly not simply rely on power. What is the true authority of the elements of a law? Pound did not make it clear. He believes that if the law is fulfilling (and doing well) the task of addressing conflicting and overlapping human needs, then we can guide our actions in accordance with the law. Pound believes that judges in many parts of history have a lot of discretion, but this discretion is increasingly restricted, based on the elements of the law judgment has become a major trend. But discretion can't be completely avoided, and it's necessary for referees. The ideal element refers to the philosophical, political and ethical concepts of the legal purpose and the rules according to which the legal purpose should become a legal decree. In pound's case, this concept has taken off the universalism of the natural law theory and put on a humble localism, which, as pound put it, ultimately boils down to a picture of the social order of a certain time and place. The ideal elements mainly include the utilitarian principle of maximizing social wealth, the legal assumptions concluded by Ponder and the common culture, direction and goal of society. Pound hopes that ideal elements can guide judicial practice and restrict discretion. It also reflects pound's concern about the collapse of the value consensus.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D90
本文编号：2269378
[Abstract]:Pound believed that law must be stable, but not static. American society in the late 19th century and early 20th century was in a period of dramatic change. The existing law is obviously backward, the existing legal theory is also obviously ossified. So pound criticized his rigid legal theory, especially Randall's formalism, on the basis of which he put forward his "sociological jurisprudence". Pound's sociological jurisprudence is rich in content, so a single grasp of a variety of topics will make people feel that trees do not see the forest, nor can they grasp the intrinsic connection of various themes in pound's theory. In view of this, this paper attempts to construct a simple framework of understanding pound's theory from pound's understanding of legal elements. In pound's view, the word "law" has many uses in reality. But he thinks that the "law" used in judicial practice refers to the authoritative basis of legal cases. By this authority, disputes can be adjudicated and the legal order maintained. In this sense, "law" is composed of three elements: law, technology and ideal. Among them, the legal elements and ideal elements are the law in the sense of subject, and together they form the authoritative basis of the judgment, while the technical elements are the way for the law to act on the facts of the case. Depending on the function of the technical elements, the adjudication of cases can be carried out. Although the technical elements are very important to the adjudication of cases, because the technical elements are in fact a procedural element, they are not the focus of this paper, nor will they have a substantial impact on the conclusion of this paper. Therefore, this paper focuses on the analysis of the two elements: the law element and the ideal factor. The element of law is an important part of the element of law, which is basically composed of rules, principles, concepts and standards. Pound believes that the authority of the elements of law can not be supported by power, but certainly not simply rely on power. What is the true authority of the elements of a law? Pound did not make it clear. He believes that if the law is fulfilling (and doing well) the task of addressing conflicting and overlapping human needs, then we can guide our actions in accordance with the law. Pound believes that judges in many parts of history have a lot of discretion, but this discretion is increasingly restricted, based on the elements of the law judgment has become a major trend. But discretion can't be completely avoided, and it's necessary for referees. The ideal element refers to the philosophical, political and ethical concepts of the legal purpose and the rules according to which the legal purpose should become a legal decree. In pound's case, this concept has taken off the universalism of the natural law theory and put on a humble localism, which, as pound put it, ultimately boils down to a picture of the social order of a certain time and place. The ideal elements mainly include the utilitarian principle of maximizing social wealth, the legal assumptions concluded by Ponder and the common culture, direction and goal of society. Pound hopes that ideal elements can guide judicial practice and restrict discretion. It also reflects pound's concern about the collapse of the value consensus.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D90
【引证文献】
相关硕士学位论文 前2条
1 朱伟斌;论庞德的社会利益理论[D];西南政法大学;2011年
2 王娟;庞德的社会控制理论解析与反思[D];西北师范大学;2011年
，本文编号：2269378
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