耶林权利思想研究

发布时间：2018-08-25 20:02

【摘要】：生活在19世纪德国的耶林，以其不朽的学术成就得以与萨维尼和祁克并列，被公认为当时欧洲最伟大的法学家之一。他的法哲学思想对19世纪末德国统一后的立法以及后世西方法学，尤其是社会法学，产生了深远的影响。耶林权利思想是他法哲学思想的核心内容，是在准确把握权利本质的基础上，紧紧围绕斗争而展开的。耶林认为权利从来不是上天的恩赐，而是人们通过艰苦卓绝的努力而取得的，号召人们尊重健全的法感情，，为权利而斗争。耶林通过使人们注意权利背后的利益，而改变了整个权利理论。耶林以利益作为权利的指称范畴，认为权利就是受到法律保护的一种利益。对于耶林而言，法与权利是相通的，法是客观意义上的权利，而权利则是主观意义上的法。法源于斗争，法的生命在于斗争，为权利而斗争就是为法律而斗争。为权利而斗争不但是权利人对自身的义务，同时也是对社会的义务。耶林在《为权利而斗争》中反复提及“法感情”，他认为“为权利而斗争”其实就是“法感情”的实践操作，是对可耻的伤害法感情的行为在道德和实践上的回击。为权利而斗争需要健全的法感情，而法感情的健全同样需要公民为权利而斗争，耶林认为二者是是互为因果，互相促进的。耶林的权利思想不但对当时的欧洲，而且对全世界都产生了深远的影响。耶林对后世西方法学的影响主要体现在对社会法学的影响，如对利益法学、社会连带主义法学、美国社会法学等社会法学的分支都产生了直接的影响。耶林在东方所产生的影响与在西方的影响有所不同，更多的倾向于实践层面，在于国民的法律意识。在日本法制近代化过程中，耶林权利思想就对日本公民法律意识的提高起到了积极的推动作用。任何伟大的实践都要有先进的理论作指导，中国的法治实践也不例外。对于不知权利为何物、惧怕斗争的中国人而言，耶林的权利思想无疑是非常重要的。它不但可以帮助我们从理论上寻找走出权利困境的出路，还能为我们如何培养公民树立正确的权利观提供现实的指导，从而为中国法治的良性运行和全面发展奠定坚实的基础。
[Abstract]:Jering, who lived in Germany in the 19 th century, was recognized as one of the greatest jurists in Europe at that time with his immortal academic achievements. His philosophy of law had a profound influence on the legislation after the unification of Germany at the end of the 19th century and on the western jurisprudence, especially the social law. Yering's thought of right is the core of his philosophy of law, which is based on accurately grasping the essence of right and closely revolves around the struggle. Yering believed that rights were never a gift of God, but were obtained through hard work and called on people to respect sound feelings of law and fight for rights. Yering changed the whole theory of rights by drawing attention to the interests behind them. Yering regards interest as the reference category of right, and thinks that right is a kind of benefit protected by law. To Yering, law and right are interlinked, law is objective right, and right is subjective law. Law originates from struggle, the life of law lies in struggle, struggle for right is struggle for law. The struggle for rights is not only the duty of the obligee to himself, but also the obligation to the society. In "struggle for Rights", Jering repeatedly mentions "legal feelings". He thinks that "fighting for right" is actually a practical operation of "legal emotion", and it is a moral and practical response to the shameful act of harming the feelings of law. The struggle for rights requires sound legal feelings, and the sound of legal feelings also needs citizens to fight for rights. Yering believes that the two are mutually causal and mutually reinforcing. Yering's thought of power had a profound influence not only on Europe, but also on the whole world. The influence of Yering on the western jurisprudence of later generations is mainly reflected in the influence on social jurisprudence, such as the branch of social jurisprudence, such as interest law, social joint and several doctrine law, American social law and so on. The influence of Yering in the East is different from that in the West. In the process of modernization of Japanese legal system, Yering's right thought has played a positive role in the improvement of Japanese citizen's legal consciousness. Any great practice must be guided by advanced theory, and the practice of rule of law in China is no exception. For the Chinese who do not know what power is and fear the struggle, Yering's thought of right is undoubtedly very important. It can not only help us to find a way out of the dilemma of rights theoretically, but also provide us with practical guidance on how to train citizens to set up a correct view of rights, thus laying a solid foundation for the benign operation and overall development of China's rule of law.
【学位授予单位】：江西师范大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D90

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