新自然法学法治论之旨趣及启示

发布时间：2018-04-22 09:13

本文选题：法治 + 新自然法学　；参考：《广东社会科学》2017年01期

【摘要】：自然法学派对西方法治论传统及“良法之治”理念具有承启意义。晚近新自然法学褪去了道德形而上学的色彩,其法治论也渐次转向对法治形式价值的关注。在罗尔斯的正义论中,“法治”以正义原则为旨归,趋于描述一种确保正义价值的形式化制度体系与法治秩序;在富勒的法律道德性理论中,“法治”作为不断趋向道德目标的治理事业,体现为一种内在具有合理形式、蕴涵“程序自然法”的秩序框架。晚近新自然法学注重认知与方法的平衡,现实地考量法治的形式价值,进而转向对规范之内在属性及秩序之稳定形式的审思,这对强调程序正义的中国法治秩序构建不乏启示意义。
[Abstract]:The school of natural law is of great significance to the western tradition of rule of law and the idea of good law. Recently, the new natural law has faded the color of moral metaphysics, and its theory of rule of law has gradually turned its attention to the formal value of the rule of law. In Rawls's theory of justice, "rule of law" aims at the principle of justice, and tends to describe a formal system of system and order of rule of law that ensures the value of justice, while in Fuller's theory of legal morality, "Rule by law", as a governing cause which is constantly moving towards the moral goal, is embodied in an order frame which has a reasonable internal form and contains "procedural natural law". Recently, the New Natural Law paid attention to the balance between cognition and method, and realistically considered the formal value of the rule of law, and then turned to the consideration of the stable form of attribute and order within the norm. There is no lack of enlightenment to the construction of China's legal order, which emphasizes procedural justice.
【作者单位】：广东财经大学法治与经济发展研究所;厦门大学法学院;
【分类号】：D909

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