德性法律論證理論及其應用
發(fā)布時間：2018-08-07 10:45
【摘要】：法律論證理論要解決的問題是:如何才能使人們確信某一法律評價或決策是正確的?從廣義的法律論證角度看,法律思想史上解決這一問題的路徑主要有兩條: 其一,依據人的本性來確立和證立正確的公共標準并使人確信某一具體的法律評價或決策的正確性�？偟膩碚f,這一路徑將人類的價值選擇生活分成人性的事實和行為規(guī)范兩個部分,存在著以下困難:以哪一種人性為依據?符合人性事實的在價值選擇上就是正確的嗎?對此,人們充滿爭議。因而,它不能滿足法律論證的公共性要求。這一缺陷以多種不同的形態(tài)存在于其具體的樣式中,這些樣式包括功利主義、情感主義(包括法律修辭學)、理性主義(包括法律邏輯學和論辯法律論證理論)、自由主義等。 其二,依據人的人性之外的正當性目的(例如善)來確立和證立正確的公共標準(德性)并使人確信具體的法律評價或決策的正確性,這是德性倫理學的路徑。它將人類的價值選擇生活分成人性的事實、行為標準和正當性目的三部分。在其發(fā)展的早期,人們一方面試圖依據善特別是最高的善來建立正確的立法標準(德性),另一方面強調法律的目的在于使人成為善人或有德性的人,但是,由于沒有區(qū)分個人的善和共同體的善,他們關于善特別是最高的善的觀念存在著缺陷。后來堅持從德性倫理學的立場來解決法律正確性問題的學者主要沿著兩種不同的方向來發(fā)展德性倫理理論。一種是基于主體的德性倫理學理論,它主張以有德性的人的所作所為作為判斷行為對錯的標準。但是,這存在著問題:我們怎么知道誰是有德性的人?我們怎么知道他在特定的情形下會做什么?這些問題使得基于主體的德性法律論證理論失卻了它所期望的力量。另一種是基于善的德性倫理學理論,它主張要以共同的善特別是最高的共同善作為依據來解決有關法律論證的問題。本來,這一路徑在邏輯上可以滿足法律論證的公共性要求,但是,對什么是共同的善,特別是什么是最高的共同善,他們要么是沒有清晰的界定,要么是其界定實際上缺少公共性。 為了解決法律論證理論的問題,在繼承基于善的德性倫理學理論傳統(tǒng)的基礎上,建立起了德性法律論證理論。這一理論的主要立場是:其一,人類的價值選擇生活包括人性的事實、行為規(guī)范(德性)和善三個部分;其二,法律論證的依據是共同的善;在共同的善中必須存在最高的善;這最高的共同善是人類的繁榮。它的客觀要求是:尊重和愛惜人類的生命和健康;維系人類之間和人類與自然之間的和諧關系;將現有的生活機會向所有人開放。 本文認為基于這一立場的理論能夠解決法律論證問題。因為:其一,它能夠確立起法律論證的公共標準。因為人類的繁榮和其他共同的善都是公共的,而法律論證的標準即德性是能夠從它們中必然地推出來的。其二,它能證立它所建立的確立的諸標準(諸德性)。因為,人類的繁榮和以此為依據的其他共同善是善的。其三,它還可以解決法律論證的形式標準和論證方法等其他問題。 根據這一德性法律論證理論,可以對法律論證所需要的共榮性正義德性標準、優(yōu)先性正義德性標準、尊重自由權的德性標準和尊重法律事實的德性標準作如下界定: 其一,它們都有其特定的適用范圍。共榮性正義標準用于處理能夠并存且應該并存的利益關系;優(yōu)先性正義標準用于處理不能并存或不應該并存的利益關系;尊重自由權的標準適用于正義標準適用的領域之外領域;尊重事實的立法標準適用于要對是否要將某種事實納入某一法律規(guī)范還是將它排除在該法律規(guī)范之外作出判斷的情況,其司法標準適用于要對某一案件事實是否屬于某一法律規(guī)范的要件事實及其真實性作出判斷的情況。 其二,它們是特定社會共同體的立法者或法官所確認的標準; 其三,它們要有助于人類的繁榮,或至少不會:a/漠視人類的生命和健康;b/破壞人類之間和人類與自然之間的和諧關系;c/限制現有的生活機會向所有人開放。
[Abstract]:The problem of the theory of legal argumentation is: how can we make people believe that a certain legal evaluation or decision is correct? From the perspective of the broad sense of law, there are two main ways to solve this problem in the history of legal thought.
First, according to human nature, establish and establish correct public standards and make sure that a specific legal evaluation or decision is correct. In general, this path divides human life into two parts of human nature and behavior norms. Is it correct in the choice of value? People are full of controversy. Therefore, it can not meet the public requirements of legal argumentation. This defect exists in its specific patterns in a variety of forms, which include utilitarianism, emotionally (including Legal Rhetoric), rationalism (including legal logic and argument). The theory of legal argumentation, liberalism, etc.
Secondly, it is the path of moral ethics to establish and establish correct public standards (virtue) and make sure that the specific legal evaluation or decision is correct according to the legitimate purpose of human nature (such as good). This is the path of moral ethics. It divides human life into three parts of human nature, behavior standard and justifiable purpose. In the early stages of development, on the one hand, people tried to establish the right legislative standards (virtue) based on good, especially the highest good. On the other hand, the purpose of the law was to make people a good or virtuous person. However, there was a defect in the idea of good, especially the highest good, because there was no distinction between the good and the good of the community. Later, the scholars who insist on solving the problem of legal correctness from the standpoint of virtue ethics mainly develop the moral theory of virtue along two different directions. One is based on the moral theory of the subject, which advocates the behavior of the person with virtue as the criterion for judging the wrong behavior. However, this is the question: how do we How do we know who is virtuous? How do we know what he will do in a particular situation? These questions make the theory of virtue based on the subjectivity of the subject lose the power it expects. The other is based on the virtue ethics of goodness, which advocates that the common good is the highest common good as the basis for solving the problem. The problem of legal argumentation. This path, originally, can logically satisfy the public requirements of legal argumentation, but what is common good, especially what is the highest common good, either is not clearly defined, or its definition actually lacks public nature.
In order to solve the problem of the theory of legal argumentation, on the basis of inheriting the theoretical tradition of virtue ethics based on good, the theory of virtue legal argumentation is established. The main position of this theory is: first, the human value choice of life includes the fact of human nature, the norm of behavior (virtue) and good three parts; secondly, the basis of the legal argumentation is common. The same good; the highest good in the common good; the highest common good is the prosperity of mankind. Its objective demands are to respect and cherish human life and health; to maintain a harmonious relationship between human beings and between human and nature; and to open the existing opportunities to the people.
This paper argues that the theory based on this position can solve the problem of legal argumentation. For one, it can establish the public standard of legal argumentation. Because human prosperity and other common good are public, and the standard of legal argumentation is that virtue can be pushed out of them. Secondly, it can prove the establishment of it. The established standards (virtue), for the prosperity of human beings and other common goodness based on it are good. Thirdly, it can also solve other problems, such as the formal standard and the method of argumentation of the legal argumentation.
According to this theory of virtue legal argumentation, it can be defined as follows: the standards of virtue, justice, virtue, justice, virtue and virtue, and the virtue standards of respect for the right of freedom and the virtue standards of respect for the legal facts are defined as follows.
First, they all have their specific scope of application. The standard of common justice is used to deal with the coexistence and coexistence of interests; the standard of priority justice is used to deal with the interests that cannot coexist or should not coexist; the standards of respect for the right to freedom are applicable to the field beyond the applicable standards of justice; the legislative standards of respect for the facts are respected. It applies to cases where a certain fact is to be incorporated into a legal norm or excluded from the legal norm, and its judicial standard is applicable to judging the facts and truthfulness of the fact that a certain case is in the case of a certain legal norm.
Second, they are the criteria recognized by legislators or judges of specific social communities.
Third, they will help the prosperity of human beings, or at least not: a/ disregards human life and health; b/ destroys the harmonious relationship between human beings and human and nature; c/ limits the existing opportunities of living to all people.
【學位授予單位】：中國政法大學
【學位級別】：博士
【學位授予年份】：2011
【分類號】：D90-05
本文編號：2169779
[Abstract]:The problem of the theory of legal argumentation is: how can we make people believe that a certain legal evaluation or decision is correct? From the perspective of the broad sense of law, there are two main ways to solve this problem in the history of legal thought.
First, according to human nature, establish and establish correct public standards and make sure that a specific legal evaluation or decision is correct. In general, this path divides human life into two parts of human nature and behavior norms. Is it correct in the choice of value? People are full of controversy. Therefore, it can not meet the public requirements of legal argumentation. This defect exists in its specific patterns in a variety of forms, which include utilitarianism, emotionally (including Legal Rhetoric), rationalism (including legal logic and argument). The theory of legal argumentation, liberalism, etc.
Secondly, it is the path of moral ethics to establish and establish correct public standards (virtue) and make sure that the specific legal evaluation or decision is correct according to the legitimate purpose of human nature (such as good). This is the path of moral ethics. It divides human life into three parts of human nature, behavior standard and justifiable purpose. In the early stages of development, on the one hand, people tried to establish the right legislative standards (virtue) based on good, especially the highest good. On the other hand, the purpose of the law was to make people a good or virtuous person. However, there was a defect in the idea of good, especially the highest good, because there was no distinction between the good and the good of the community. Later, the scholars who insist on solving the problem of legal correctness from the standpoint of virtue ethics mainly develop the moral theory of virtue along two different directions. One is based on the moral theory of the subject, which advocates the behavior of the person with virtue as the criterion for judging the wrong behavior. However, this is the question: how do we How do we know who is virtuous? How do we know what he will do in a particular situation? These questions make the theory of virtue based on the subjectivity of the subject lose the power it expects. The other is based on the virtue ethics of goodness, which advocates that the common good is the highest common good as the basis for solving the problem. The problem of legal argumentation. This path, originally, can logically satisfy the public requirements of legal argumentation, but what is common good, especially what is the highest common good, either is not clearly defined, or its definition actually lacks public nature.
In order to solve the problem of the theory of legal argumentation, on the basis of inheriting the theoretical tradition of virtue ethics based on good, the theory of virtue legal argumentation is established. The main position of this theory is: first, the human value choice of life includes the fact of human nature, the norm of behavior (virtue) and good three parts; secondly, the basis of the legal argumentation is common. The same good; the highest good in the common good; the highest common good is the prosperity of mankind. Its objective demands are to respect and cherish human life and health; to maintain a harmonious relationship between human beings and between human and nature; and to open the existing opportunities to the people.
This paper argues that the theory based on this position can solve the problem of legal argumentation. For one, it can establish the public standard of legal argumentation. Because human prosperity and other common good are public, and the standard of legal argumentation is that virtue can be pushed out of them. Secondly, it can prove the establishment of it. The established standards (virtue), for the prosperity of human beings and other common goodness based on it are good. Thirdly, it can also solve other problems, such as the formal standard and the method of argumentation of the legal argumentation.
According to this theory of virtue legal argumentation, it can be defined as follows: the standards of virtue, justice, virtue, justice, virtue and virtue, and the virtue standards of respect for the right of freedom and the virtue standards of respect for the legal facts are defined as follows.
First, they all have their specific scope of application. The standard of common justice is used to deal with the coexistence and coexistence of interests; the standard of priority justice is used to deal with the interests that cannot coexist or should not coexist; the standards of respect for the right to freedom are applicable to the field beyond the applicable standards of justice; the legislative standards of respect for the facts are respected. It applies to cases where a certain fact is to be incorporated into a legal norm or excluded from the legal norm, and its judicial standard is applicable to judging the facts and truthfulness of the fact that a certain case is in the case of a certain legal norm.
Second, they are the criteria recognized by legislators or judges of specific social communities.
Third, they will help the prosperity of human beings, or at least not: a/ disregards human life and health; b/ destroys the harmonious relationship between human beings and human and nature; c/ limits the existing opportunities of living to all people.
【學位授予單位】：中國政法大學
【學位級別】：博士
【學位授予年份】：2011
【分類號】：D90-05
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