略论西方马克思主义与法学方法论
发布时间：2018-08-23 15:08
【摘要】： 法学按照其层次从浅到深可概括为制度、理念、方法论,任何一种制度都由理论引导,而每种理论都有其方法论基础,换句话说,如果方法论失当,由此而形成的理念和制度就天然的具有缺陷。本文并非要全然推翻由失当的方法论所成的理念和制度,而是要指出其中的缺陷以使得对各种理论的思考更加全面。 当今中国法学界相当多的理论将西方自然法个人主义的天赋人权理念之上形成的契约论作为至上真理,不予论证而将其作为各种理论的前提,比如在张文显系统阐述其“权利本位论”的《当代中国法哲学研究范式的转换——从阶级斗争范式到权利本位范式》一文中,他直接借用契约论“国家权力来源于个人权利”“私法优于公法”“社会与国家相分离”等观点作为中国法的基本理念,但是他没有看到这种西方法治理念的历史发展,这种理念是与维护对资本主义有利的经济结构和政治、文化理念相一致的,只是资本主义现实的片断截取,它的逻辑与历史并不相一致,于是,它对前资本主义社会的状态只能用虚拟的自然状态和由资本主义法的逻辑篡改过的自然法来描述。同样的,按照历史唯物主义的方法,社会主义社会同资本主义社会经济状况相区别,资本主义社会以自由市场为基础,而社会主义社会中不仅仅存在的是自由市场,更重要的是公有制经济的发展,所以,直接套用西方的法治理念是不合适的。在法理学之外法学领域,尤其是民商法界,这种指导法学发展和法的建设的思维方式更是非常盛行。这种情况反映了两方面问题:一方面,法学研究者较少关注本国现实问题,更少关注本国其他学科,尤其是哲学、社会学、经济学的研究思路和成果;另一方面,法学研究者对作为法学指导思想的马克思主义缺乏深入研究,在运用历史唯物主义方法论进行研究的时候容易产生两种错误,一是教条主义,一是以简单的经济决定论和阶级斗争为纲的理由予以全盘否定。而对历史唯物主义作深入的理解将会有助于摒弃法学理论界简单的拿来主义和教条主义倾向。 马克思主义是中国法学理论的指导思想,作为马克思主义核心方法论的历史唯物主义和作为马克思主义终极价值观的“一切人的自由”是马克思主义精神中不可分割的两个支点,因此,它们也是中国法学理论的方法论和价值观,其中,历史唯物主义是最根本的,因为价值观脱离了正确的方法论就无法得以真正实现。马克思主义经典作家去世以后,资本主义社会发生了重大变化,法制和法学发展日益成熟,西方马克思主义者运用马克思主义思想方法对新环境、新问题展开了深入讨论,特别集中于对西方主流法学理念的批判,这些理论对中国法学理论的发展有深刻的启示意义。当然,西方马克思主义者身处西方发达国家,其理论不可避免的有西方主流思想的烙印,但是,正是因为这些烙印,我们才能发现他们对马克思主义的偏离,从而,从另一侧面加深对马克思主义的理解。 本文第1章将从方法论和价值观的视角——近代西方哲学的缺陷——主客体二元对立、形而上学的方法论导致价值观上的抽象的人两方面阐述马克思主义哲学对近代西方哲学的超越以及其与转向后的现代西方哲学的联系,继而重点阐释马克思主义哲学与西方马克思主义哲学的关系,尤其是西方马克思主义对马克思主义的继承和偏离。其中,为了使得本文对西方马克思主义方法论的阐述更具针对性,对西方现代法学影响力最大的代表哈耶克的理论进行了剖析,揭示其方法论基础。在全球化条件下,古典自由主义经济学再次盛行,作为其新发展的新自由主义思潮的影响力在当今世界尤其是中国算是最大的,其涉及政治、法学等各个领域,当然,也包括它的方法论。而这一思潮的代表理论无疑是哈耶克理论,一方面,他作为西方新自由主义最具现实影响的经济学家深谙西方经济学的思路,以此来发展其法学,因而,他的法哲学具有典型意义;其二,其理论所代表的思路正是西方马克思主义的主要批判对象。哈耶克首先是一个现代西方法哲学的代表,他将之前西方法哲学的理论路径分为两支,一支是建构理性主义,一支是进化理性主义,他摒弃的是西方近代法哲学以卢梭、黑格尔为代表的形而上学的理性主义自然法理论,而他尊崇的是以亚当斯密、休谟等为代表的经验论的进化理性主义。进化理性主义,在哈耶克来说,建立在人的无知论和知识分散论之上,这无非是庸俗经济学的自由市场理论在哲学上的变种,是为思想市场。每个人的知识都是有限的,只有在思想市场中根据市场规则自由交换才能获得指导自己行为的信息,这个市场里,人是分散的,是原子式的个人,知识是分散的,依照个人之间形成的自发秩序才能组织起来推动社会进步,而政府的命令不能违背这个秩序和它的规则。哈耶克的理论里,人还是抽象的人,只不过是能够签订自由契约的人,至于他的财产、地位等等真实内容都已经被抽出去了。无疑,这依旧是另一种脱离物质生产条件的形而上学。 第2章通过西方马克思主义理论最具代表性和统领性的理论对西方马克思主义的思维方法进行总体上的分析,这些理论包括有:体现“社会存在决定社会意识”的卢卡奇的总体论、体现经济基础和上层建筑原理的葛兰西:“国家=政治社会+市民社会”、体现马克思主义价值观的阿尔杜塞理论,最后是全面体现西方马克思主义对马克思主义方法论和价值观的继承性的马尔库塞理论。 第3章,通过西方马克思主义者对西方法学理念的具体分析来详细看其方法论,与此同时,将这种视角与中国理论界的理论和中国社会的现实包括全球化、环保技术、政治民主中的法理念及现实制度等问题相联结,以更好的探求西方马克思主义对法学方法论的意义。 结论在于,只有在方法论上深入理解西方主流法学理念的背景和内涵,并且将法学和其他学科的方法和成果相联系,才能真正学会用马克思主义方法论指导法学理论的发展。从对西方马克思主义的研究中,我们可以看到其与西方各种哲学和思潮的根本区别,就是,它着力恢复历史唯物主义这个方法论基础和“人的全面发展、一切人的自由”的马克思主义价值理念。法学研究最需要的是,运用历史唯物主义对各种社会现实问题进行分析,坚持马克思主义的价值观,不应该被西方的法治逻辑套牢,不要以法学世界观狭隘地观察世界。西方马克思主义对现当代资本主义社会和社会主义社会的社会政治实践的社会历史分析,为我们更加深入的理解资本主义运行机制包括法哲学和法的内在结构提供了丰富的资源,同时为社会主义在新的历史条件下的法的理念、法的本质、结构和法的职能提供了诸多参考。从法学研究和法的理念来看,重中之重就是方法论问题,方法论不仅仅是指历史唯物主义这个宏观方法论,注重在经济、政治和文化方向上全面地考察问题,在微观上,更应该注重社会学研究,不单是将社会学作为一种方法,也要将社会学研究本身作为资料和理论来源,以此来防止西方式法治的形而上学特性。
[Abstract]:Jurisprudence can be summarized as system from shallow to deep according to its level. Idea, methodology, any system is guided by theory, and each theory has its methodological basis. In other words, if methodology is improper, the resulting ideas and systems are naturally defective. We should point out shortcomings in order to make all kinds of theories more comprehensive.
A considerable number of theories in Chinese jurisprudence today regard the contract theory formed on the basis of the innate human rights concept of Western individualism of natural law as the Supreme truth, and regard it as the premise of various theories without argumentation. For example, in Zhang Wenxian's systematic exposition of the transformation of the paradigm of contemporary Chinese philosophy of law from the perspective of class In the article from the struggle paradigm to the right-based paradigm, he borrowed the contractual theory that "state power comes from individual rights", "private law is superior to public law", "society and state are separated" as the basic concepts of Chinese law, but he did not see the historical development of this western concept of rule of law, which is to safeguard the owner of capital. The economic structure, politics and cultural concepts of righteousness and advantage are consistent with the capitalist reality, but the logic of which is inconsistent with history. Therefore, it can only describe the state of the pre-capitalist society in terms of the fictitious natural state and the natural law falsified by the logic of the capitalist law. Similarly, according to historical materialism. The socialist method is different from the capitalist social and economic conditions. The capitalist society is based on the free market. In the socialist society, there is not only the free market, but also the development of the public economy. Therefore, it is not appropriate to apply the western concept of the rule of law directly. This situation reflects two problems: on the one hand, law researchers pay less attention to the practical problems of their own country, and less attention to the research ideas and achievements of other disciplines, especially philosophy, sociology and economics; Law researchers lack in-depth study of Marxism as the guiding ideology of law. They are prone to make two mistakes when using the methodology of historical materialism. One is dogmatism. The other is to negate it wholly on the grounds of simple economic determinism and class struggle. Understanding will help to discard the simple doctrinal and dogmatic tendencies of legal theory.
Marxism is the guiding ideology of Chinese jurisprudence theory. Historical materialism as the core methodology of Marxism and "freedom of all people" as the ultimate value of Marxism are two inseparable fulcrums of Marxist spirit. Therefore, they are also the methodology and values of Chinese jurisprudence theory. Historical materialism is the most fundamental, because values can not be truly realized without correct methodology. After the death of Marxist classical writers, great changes have taken place in capitalist society, the development of legal system and law has become increasingly mature, Western Marxists use Marxist ideological methods to new environment, new problems. Deeply discussed, especially focusing on the criticism of the western mainstream jurisprudence, these theories have profound implications for the development of Chinese jurisprudence. Of course, western Marxists in the western developed countries, their theories inevitably have the brand of the western mainstream ideas, but it is precisely because of these brand, we can issue them. Now they deviate from Marx doctrine, thus deepening the understanding of Marx's theory from another aspect.
Chapter 1 of this article will elaborate the transcendence of Marxist philosophy to modern western philosophy and its relationship with modern western philosophy after turning from the perspective of methodology and values-the defect of modern western philosophy-the binary opposition between subject and object, and the abstract human being caused by metaphysical methodology. This paper expounds the relationship between Marxist philosophy and Western Marxist philosophy, especially the inheritance and deviation of Marxism from Western Marxism. In order to make this paper more pertinent to the interpretation of Western Marxist methodology, Hayek's theory, the most influential representative of Western modern jurisprudence, is analyzed and exposed. Under the condition of globalization, classical liberal economics prevails again, and the influence of neo-liberalism as its new development is the greatest in the world, especially in China. It involves politics, law and other fields, including its methodology, of course. The representative theory of this trend of thought is undoubtedly Haye. On the one hand, as the most influential economist of Western neo-liberalism, he knows the thought of western economics deeply and develops his jurisprudence by it, so his philosophy of law has typical significance; on the other hand, the thought represented by his theory is the main object of criticism of Western Marxism. Hayek is first of all a modern West. The representative of the philosophy of law, he divided the theoretical path of the former western philosophy of law into two branches, one is constructive rationalism, the other is evolutionary rationalism. He abandoned the metaphysical rationalistic natural law theory represented by Rousseau and Hegel in the modern western philosophy of law, and he respected the classics represented by Adam Smith and Hume. Evolutionary rationalism, in Hayek's case, is based on human ignorance and knowledge decentralization. It is nothing more than a philosophical variant of the free market theory of vulgar economics, for the ideological market. Everyone's knowledge is limited and can only be freely exchanged in the ideological market according to market rules. In this market, people are dispersed, atomized individuals, knowledge is dispersed, organized in accordance with the spontaneous order among individuals to promote social progress, and government orders can not violate this order and its rules. The person who can sign a free contract, as to his property, status, and so on, has been withdrawn. This is still another metaphysics, no doubt, out of material conditions of production.
Chapter 2 makes an overall analysis of the thinking methods of Western Marxism through the most representative and dominant theories of Western Marxist theory. These theories include Lukacs'totalism which embodies "social existence determines social consciousness", Gramsci who embodies the economic foundation and the principle of superstructure: "state = politics" "Society + Civil Society" embodies the Althusser theory of Marxist values, and finally is the Marcuse theory that fully embodies the inheritance of Western Marxism to Marxist methodology and values.
Chapter 3, through the specific analysis of Western Marxist legal concepts to see its methodology in detail, at the same time, this perspective and the theory of Chinese theoretical circles and the reality of Chinese society, including globalization, environmental protection technology, political democracy in the concept of law and the reality of the system to better explore Western Mark. The significance of thinking theory to the methodology of law.
The conclusion is that only when we have a deep understanding of the background and connotation of the western mainstream jurisprudence and the connection between the methods and achievements of jurisprudence and other disciplines can we really learn to use Marxist methodology to guide the development of jurisprudence. The fundamental difference between learning and ideological trend is that it focuses on restoring the methodological basis of historical materialism and the Marxist value concept of "all-round development of human beings and freedom of all human beings". Western Marxism's social and historical analysis of the social and political practice of modern and contemporary capitalist and socialist societies has provided us with a rich understanding of the capitalist operating mechanism, including the philosophy of law and the internal structure of law. Rich resources also provide many references for the concept, essence, structure and function of law under the new historical conditions of socialism.Jurisprudence research and the concept of law show that the most important thing is methodology.Methodology is not only the macro-methodology of historical materialism, but also the economy, politics and culture. In order to prevent the metaphysical characteristics of Western rule of law, we should pay more attention to sociological research, not only as a method, but also as a source of information and theory.
【学位授予单位】：中国人民大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：D90
本文编号：2199441
[Abstract]:Jurisprudence can be summarized as system from shallow to deep according to its level. Idea, methodology, any system is guided by theory, and each theory has its methodological basis. In other words, if methodology is improper, the resulting ideas and systems are naturally defective. We should point out shortcomings in order to make all kinds of theories more comprehensive.
A considerable number of theories in Chinese jurisprudence today regard the contract theory formed on the basis of the innate human rights concept of Western individualism of natural law as the Supreme truth, and regard it as the premise of various theories without argumentation. For example, in Zhang Wenxian's systematic exposition of the transformation of the paradigm of contemporary Chinese philosophy of law from the perspective of class In the article from the struggle paradigm to the right-based paradigm, he borrowed the contractual theory that "state power comes from individual rights", "private law is superior to public law", "society and state are separated" as the basic concepts of Chinese law, but he did not see the historical development of this western concept of rule of law, which is to safeguard the owner of capital. The economic structure, politics and cultural concepts of righteousness and advantage are consistent with the capitalist reality, but the logic of which is inconsistent with history. Therefore, it can only describe the state of the pre-capitalist society in terms of the fictitious natural state and the natural law falsified by the logic of the capitalist law. Similarly, according to historical materialism. The socialist method is different from the capitalist social and economic conditions. The capitalist society is based on the free market. In the socialist society, there is not only the free market, but also the development of the public economy. Therefore, it is not appropriate to apply the western concept of the rule of law directly. This situation reflects two problems: on the one hand, law researchers pay less attention to the practical problems of their own country, and less attention to the research ideas and achievements of other disciplines, especially philosophy, sociology and economics; Law researchers lack in-depth study of Marxism as the guiding ideology of law. They are prone to make two mistakes when using the methodology of historical materialism. One is dogmatism. The other is to negate it wholly on the grounds of simple economic determinism and class struggle. Understanding will help to discard the simple doctrinal and dogmatic tendencies of legal theory.
Marxism is the guiding ideology of Chinese jurisprudence theory. Historical materialism as the core methodology of Marxism and "freedom of all people" as the ultimate value of Marxism are two inseparable fulcrums of Marxist spirit. Therefore, they are also the methodology and values of Chinese jurisprudence theory. Historical materialism is the most fundamental, because values can not be truly realized without correct methodology. After the death of Marxist classical writers, great changes have taken place in capitalist society, the development of legal system and law has become increasingly mature, Western Marxists use Marxist ideological methods to new environment, new problems. Deeply discussed, especially focusing on the criticism of the western mainstream jurisprudence, these theories have profound implications for the development of Chinese jurisprudence. Of course, western Marxists in the western developed countries, their theories inevitably have the brand of the western mainstream ideas, but it is precisely because of these brand, we can issue them. Now they deviate from Marx doctrine, thus deepening the understanding of Marx's theory from another aspect.
Chapter 1 of this article will elaborate the transcendence of Marxist philosophy to modern western philosophy and its relationship with modern western philosophy after turning from the perspective of methodology and values-the defect of modern western philosophy-the binary opposition between subject and object, and the abstract human being caused by metaphysical methodology. This paper expounds the relationship between Marxist philosophy and Western Marxist philosophy, especially the inheritance and deviation of Marxism from Western Marxism. In order to make this paper more pertinent to the interpretation of Western Marxist methodology, Hayek's theory, the most influential representative of Western modern jurisprudence, is analyzed and exposed. Under the condition of globalization, classical liberal economics prevails again, and the influence of neo-liberalism as its new development is the greatest in the world, especially in China. It involves politics, law and other fields, including its methodology, of course. The representative theory of this trend of thought is undoubtedly Haye. On the one hand, as the most influential economist of Western neo-liberalism, he knows the thought of western economics deeply and develops his jurisprudence by it, so his philosophy of law has typical significance; on the other hand, the thought represented by his theory is the main object of criticism of Western Marxism. Hayek is first of all a modern West. The representative of the philosophy of law, he divided the theoretical path of the former western philosophy of law into two branches, one is constructive rationalism, the other is evolutionary rationalism. He abandoned the metaphysical rationalistic natural law theory represented by Rousseau and Hegel in the modern western philosophy of law, and he respected the classics represented by Adam Smith and Hume. Evolutionary rationalism, in Hayek's case, is based on human ignorance and knowledge decentralization. It is nothing more than a philosophical variant of the free market theory of vulgar economics, for the ideological market. Everyone's knowledge is limited and can only be freely exchanged in the ideological market according to market rules. In this market, people are dispersed, atomized individuals, knowledge is dispersed, organized in accordance with the spontaneous order among individuals to promote social progress, and government orders can not violate this order and its rules. The person who can sign a free contract, as to his property, status, and so on, has been withdrawn. This is still another metaphysics, no doubt, out of material conditions of production.
Chapter 2 makes an overall analysis of the thinking methods of Western Marxism through the most representative and dominant theories of Western Marxist theory. These theories include Lukacs'totalism which embodies "social existence determines social consciousness", Gramsci who embodies the economic foundation and the principle of superstructure: "state = politics" "Society + Civil Society" embodies the Althusser theory of Marxist values, and finally is the Marcuse theory that fully embodies the inheritance of Western Marxism to Marxist methodology and values.
Chapter 3, through the specific analysis of Western Marxist legal concepts to see its methodology in detail, at the same time, this perspective and the theory of Chinese theoretical circles and the reality of Chinese society, including globalization, environmental protection technology, political democracy in the concept of law and the reality of the system to better explore Western Mark. The significance of thinking theory to the methodology of law.
The conclusion is that only when we have a deep understanding of the background and connotation of the western mainstream jurisprudence and the connection between the methods and achievements of jurisprudence and other disciplines can we really learn to use Marxist methodology to guide the development of jurisprudence. The fundamental difference between learning and ideological trend is that it focuses on restoring the methodological basis of historical materialism and the Marxist value concept of "all-round development of human beings and freedom of all human beings". Western Marxism's social and historical analysis of the social and political practice of modern and contemporary capitalist and socialist societies has provided us with a rich understanding of the capitalist operating mechanism, including the philosophy of law and the internal structure of law. Rich resources also provide many references for the concept, essence, structure and function of law under the new historical conditions of socialism.Jurisprudence research and the concept of law show that the most important thing is methodology.Methodology is not only the macro-methodology of historical materialism, but also the economy, politics and culture. In order to prevent the metaphysical characteristics of Western rule of law, we should pay more attention to sociological research, not only as a method, but also as a source of information and theory.
【学位授予单位】：中国人民大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：D90
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