论昂格尔的法治观

发布时间：2018-03-22 21:28

本文选题：昂格尔　切入点：法治观　出处：《海南大学》2012年硕士论文　论文类型：学位论文

【摘要】：昂格尔的法治观依据其理论的发展脉络分为前后两个时期。昂格尔前期的法治观建立在对自由主义法治的批判基础之上,其后期的法治观建立在对“超自由主义”政治理论的建构基础之上。昂格尔前期的法治观认为,自由主义法治发展至今已经违背了其初衷,法治就是一个神话。自由主义法治内部充满了不可调和的理论悖论——规则与价值的二律背反；法治并不是社会发展的必然,而是政治角逐的偶然产物；法治已经不能保障公众的自由与民主,法治已经丧失了其所宣称的基本功能；法治的四个基本属性在“福利—合作国家”的背景下正逐渐消解,法治终将面临解体。昂格尔后期的法治观则认为,在“超自由主义”的政治社会体系之下,法治可以通过法律与社会各种因素的融合而得以构建；具体而言,在充分尊重自由主义原初的基本价值下,法治可以通过对既有的权利体系、权力体系和推理方式的变革得以重塑。在保持法治的不断变革过程中,公众能够实现更大的政治权利和人身自由,社会能够得到有序的运转。昂格尔法治观的转向并不是随机的率性而为,而是基于对知识体系建构、现实因素考虑和政治博弈影响的考量。昂格尔法治观最终既没有转向后现代,也没有转向一般的自由主义,主要是受其超级理论的影响。昂格尔超级理论所呈现的两个特征是一方面承认结构性框架的存在,另一方面又期待着对既定结构性框架的超越,这是其超级理论面临难以超越的窘境的根源。总体来看,昂格尔前期的法治观深刻而极具影响,但过于偏激和片面；后期的法治观相对全面而更富于创造性,但与前期的批判理论有着明显的裂痕与矛盾。
[Abstract]:Unger's view of the rule of law is divided into two periods according to the development of his theory. His later view of the rule of law is based on the construction of the political theory of "super liberalism". Unger's early view of rule of law holds that the development of liberal rule of law has so far violated its original intention. The rule of law is a myth. The interior of the liberal rule of law is full of irreconcilable theoretical paradoxes-the two laws against the rule of law and the value; the rule of law is not the necessity of social development, but the accidental product of political competition. The rule of law can no longer guarantee the freedom and democracy of the public, and the rule of law has lost the basic function it claims; the four basic attributes of the rule of law are gradually being dissolved in the context of a "welfare-cooperative state". The rule of law will eventually be disintegrated. Unger's later view of the rule of law holds that under the "ultra-liberal" political and social system, the rule of law can be constructed through the fusion of various factors of law and society. With full respect for the fundamental values of liberalism, the rule of law can be reshaped through changes in the existing system of rights, power systems and ways of reasoning. The public can achieve greater political rights and personal freedom, and society can operate in an orderly way. The turn of Unger's view of the rule of law is not random but based on the construction of the knowledge system. The consideration of realistic factors and the influence of political game. Unger's view of rule of law has not turned to the postmodernism, nor to the general liberalism. It is mainly influenced by its super theory. On the one hand, it acknowledges the existence of structural framework, on the other hand, it expects to transcend the established structural framework. This is the root of his super theory's dilemma, which is difficult to surmount. In general, Unger's early views on the rule of law are profound and extremely influential, but they are too extreme and one-sided, while the later views on the rule of law are relatively comprehensive and more creative. But there are obvious cracks and contradictions with the earlier critical theory.
【学位授予单位】：海南大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D909.1

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