哈耶克二元法律观研究
发布时间：2018-08-01 14:57
【摘要】：哈耶克被认为是20世纪最伟大的自由主义思想家,他建构了完整而宏大的自由主义理论体系。哈耶克的研究领域极其广泛,涉及经济学、哲学、心理学、政治学和法学等多门学科,并且在这些学科中都颇有建树。在漫长的学术生涯中,哈耶克对各种形式的集体主义、社会主义、极权主义进行了不遗余力的批判,其独特的自由主义理论在西方乃至当代中国都产生了深远的影响。哈耶克的一生都在追求自由,其整个自由主义理论体系也是为此而建构。哈耶克所谓的自由是法治下的自由,法律理论无疑是其自由主义理论体系的基石,而二元法律观又是其法律理论的核心部分。 在我国的学术界中,对哈耶克的研究已然成为显学。学者们希望借助哈耶克的法律理论,为我国的法治化进程指明一条可供参照和借鉴的发展路径。笔者认为这种方法是可行的,只是在此之前应当对哈耶克的二元法律观进行认真且深入的研究,以便我们能够准确而全面地领悟其法律理论的精华。 本文共分为导论、第一部分、第二部分、第三部分和结论五个部分。导论简要介绍了哈耶克其人、他所取得的成就、国内外学者对其思想的研究状况以及本文论题的由来。第一部分阐述了哈耶克二元法律观的理论基础。笔者认为它的理论基础正是哈耶克的知识论和有限理性论。“分立的个人知识”和“默会知识”的存在是哈耶克“无知观”形成的前提,对“建构论唯理主义”的批判使得他接受“进化论理性主义”。第二部分阐述了哈耶克二元法律观的形成过程。哈耶克继承苏格兰道德哲学家的思想,提出“自然”、“人为”与“人之行动而非人之设计”的三分观,进而他洞见到“自生自发秩序”与“组织秩序”之间的区别。在此基础上,哈耶克认为蕴含于“自生自发秩序”中的“行动结构”和“规则系统”也是不同的,由此又确立了“规则研究范式”,把社会行为规则纳入了社会理论的研究对象。第三部分阐述了哈耶克二元法律观的实质内容。正是“规则研究范式””的确立,使得哈耶克开始关注并且思考法律问题,他指出并分析了内部规则与外部规则、公法与私法、法律与立法之间的差别和关系,最终形成了二元法律观。结论指出了哈耶克二元法律观所具有的重要意义。笔者认为哈耶克的二元法律观的意义包括：对在法理学中占据主导地位的法律实证主义和唯理论自然法构成了根本性的挑战；使人们可以明确地认识到自由社会秩序的确立需要两种规则(内部规则和外部规则)同时起作用；可以防止现代社会中公法对私法的侵扰甚或替代；使人们认识到了法律与立法的区别,防止法律与立法被混淆。
[Abstract]:Hayek is regarded as the greatest liberal thinker in the 20th century. Hayek has a wide range of fields of study, including economics, philosophy, psychology, political science and law. In his long academic career, Hayek spared no effort in criticizing various forms of collectivism, socialism and totalitarianism. Hayek pursued freedom all his life, for which his whole liberalism system was constructed. Hayek's so-called freedom is freedom under the rule of law, the legal theory is undoubtedly the cornerstone of his liberalism theory system, and the dual legal view is the core part of his legal theory. In the academic circles of our country, the study of Hayek has become a prominent school. With the help of Hayek's theory of law, scholars hope to point out a development path for reference and reference in the process of rule of law in our country. The author thinks that this method is feasible, but before this, we should study Hayek's dual legal view seriously and deeply, so that we can accurately and comprehensively comprehend the essence of his legal theory. This paper is divided into five parts: the first part, the second part, the third part and the conclusion. The introduction briefly introduces Hayek's achievements, his achievements, the research situation of his thoughts at home and abroad, and the origin of this thesis. The first part expounds the theoretical basis of Hayek's dual legal view. The author thinks that its theoretical basis is Hayek's theory of knowledge and finite rationality. The existence of "separate personal knowledge" and "tacit knowledge" is the premise of Hayek's "ignorance view", and his criticism of "constructivism rationalism" makes him accept "evolutionary rationalism". The second part expounds the formation process of Hayek's dual legal view. Hayek inherits the thought of Scottish moral philosopher and puts forward the three-point view of "nature", "man is human" and "man's action rather than man's design", and then he sees the difference between "spontaneous order" and "organization order". On this basis, Hayek holds that the "structure of action" and the "system of rules" contained in "spontaneous order" are also different, thus establishing the "paradigm of rule research". The social behavior rules are included in the research object of social theory. The third part expounds the substantive content of Hayek's dual legal view. It is the establishment of the "rule research paradigm" that makes Hayek begin to pay attention to and think about legal issues. He points out and analyzes the differences and relations between internal and external rules, public and private law, and law and legislation. Finally, a dual legal view was formed. The conclusion points out the significance of Hayek's dual legal view. The author thinks that Hayek's dual legal view has the following significance: it poses a fundamental challenge to the legal positivism and the rationalist natural law which occupy the leading position in jurisprudence; So that people can clearly realize that the establishment of a free social order requires two kinds of rules (internal rules and external rules) to play a role at the same time, which can prevent public law from intruding or even replacing private law in modern society. Make people realize the difference between law and legislation, prevent law and legislation from being confused.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D909.1
[Abstract]:Hayek is regarded as the greatest liberal thinker in the 20th century. Hayek has a wide range of fields of study, including economics, philosophy, psychology, political science and law. In his long academic career, Hayek spared no effort in criticizing various forms of collectivism, socialism and totalitarianism. Hayek pursued freedom all his life, for which his whole liberalism system was constructed. Hayek's so-called freedom is freedom under the rule of law, the legal theory is undoubtedly the cornerstone of his liberalism theory system, and the dual legal view is the core part of his legal theory. In the academic circles of our country, the study of Hayek has become a prominent school. With the help of Hayek's theory of law, scholars hope to point out a development path for reference and reference in the process of rule of law in our country. The author thinks that this method is feasible, but before this, we should study Hayek's dual legal view seriously and deeply, so that we can accurately and comprehensively comprehend the essence of his legal theory. This paper is divided into five parts: the first part, the second part, the third part and the conclusion. The introduction briefly introduces Hayek's achievements, his achievements, the research situation of his thoughts at home and abroad, and the origin of this thesis. The first part expounds the theoretical basis of Hayek's dual legal view. The author thinks that its theoretical basis is Hayek's theory of knowledge and finite rationality. The existence of "separate personal knowledge" and "tacit knowledge" is the premise of Hayek's "ignorance view", and his criticism of "constructivism rationalism" makes him accept "evolutionary rationalism". The second part expounds the formation process of Hayek's dual legal view. Hayek inherits the thought of Scottish moral philosopher and puts forward the three-point view of "nature", "man is human" and "man's action rather than man's design", and then he sees the difference between "spontaneous order" and "organization order". On this basis, Hayek holds that the "structure of action" and the "system of rules" contained in "spontaneous order" are also different, thus establishing the "paradigm of rule research". The social behavior rules are included in the research object of social theory. The third part expounds the substantive content of Hayek's dual legal view. It is the establishment of the "rule research paradigm" that makes Hayek begin to pay attention to and think about legal issues. He points out and analyzes the differences and relations between internal and external rules, public and private law, and law and legislation. Finally, a dual legal view was formed. The conclusion points out the significance of Hayek's dual legal view. The author thinks that Hayek's dual legal view has the following significance: it poses a fundamental challenge to the legal positivism and the rationalist natural law which occupy the leading position in jurisprudence; So that people can clearly realize that the establishment of a free social order requires two kinds of rules (internal rules and external rules) to play a role at the same time, which can prevent public law from intruding or even replacing private law in modern society. Make people realize the difference between law and legislation, prevent law and legislation from being confused.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D909.1
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