龐德法律要素理論研究
發(fā)布時間：2018-10-13 17:25
【摘要】： 龐德認為法律必須穩(wěn)定,但不能靜止不變。19世紀末20世紀初的美國社會正好處于一個劇烈變化的時期。既有的法律明顯落后,既有的法律理論也明顯僵化。于是,龐德對他所認為的僵化的法律理論,特別是蘭德爾的形式主義,進行了嚴厲的批判,在此基礎(chǔ)上提出了他的“社會學(xué)法學(xué)”的主張。 龐德的社會學(xué)法學(xué)內(nèi)容豐富,對繁多的主題進行單個地把握會讓人產(chǎn)生只見樹木不見森林的感覺,也不能把握到龐德學(xué)說中各個主題的內(nèi)在聯(lián)系性。鑒于此,本文試圖從龐德對法律要素的認識入手,建構(gòu)一個認識龐德學(xué)說的簡單框架。在龐德看來,“法律”一詞在現(xiàn)實中有很多種用法。但他認為在司法實踐中使用的“法律”指的是作為法律案件的權(quán)威裁判依據(jù)。依此權(quán)威,爭議得以裁決,法律秩序得以維持。而這個意義上的“法律”是由律令、技術(shù)和理想三個要素組成的。其中律令要素和理想要素作為主體意義上的法律,他們共同形成了判決的權(quán)威依據(jù)；技術(shù)要素則是法律作用于案件事實的途徑,依憑技術(shù)要素作用的發(fā)揮使得案件裁判得以進行。雖然技術(shù)要素對于案件裁判來說十分重要,但由于技術(shù)要素實際上一個程序性要素,不是本文的分析重點,也不會對本文的結(jié)論產(chǎn)生實質(zhì)性的影響。故本文將重點放在了對律令要素和理想要素這兩個要素的分析上。 律令要素是法律要素中的重要組成部分,基本上由規(guī)則、原則、概念和標準構(gòu)成。龐德認為律令要素的權(quán)威離不開權(quán)力的支撐,但也絕對不是簡單地依靠權(quán)力。律令要素的真正權(quán)威是什么呢?龐德并沒有明確地說明。他認為法律如果正在履行著(而且很好地履行著)排解各種相互沖突和重迭的人類需求的任務(wù),那么我們就依照法律來指導(dǎo)行動就可以了。龐德認為歷史上有很多地方的法官都有很大的自由裁量權(quán),但這種自由裁量權(quán)越來越受到限制,依據(jù)律令要素裁判成為了大的趨勢。但自由裁量是不可能完全避免的,而且這對于裁判來說是必要的。 理想要素是指有關(guān)法律目的以及根據(jù)這種法律目的何種規(guī)則應(yīng)當成為法律律令的哲學(xué)的、政治的和倫理的觀念體。而這種觀念體在龐德這里脫掉了自然法理論的普適主義,而穿上一種謙遜的地方主義,如龐德所言,最終歸結(jié)為一定時間和地點的社會秩序的圖畫。理想要素主要包括社會財富最大化的功利原則、龐 德總結(jié)的法律假設(shè)以及社會共同的文化、方向和目標。龐德希望理想要素能指導(dǎo)司法實踐,對自由裁量權(quán)起到一定的制約作用。這也反映了龐德對“價值共識”破裂的擔(dān)憂。
[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.
【學(xué)位授予單位】：山東大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2010
【分類號】：D90
本文編號：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.
【學(xué)位授予單位】：山東大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2010
【分類號】：D90
【引證文獻】
相關(guān)碩士學(xué)位論文 前2條
1 朱偉斌;論龐德的社會利益理論[D];西南政法大學(xué);2011年
2 王娟;龐德的社會控制理論解析與反思[D];西北師范大學(xué);2011年
，本文編號：2269378
本文鏈接：http://sikaile.net/falvlunwen/fashilw/2269378.html
