德国历史法学派的发展及其意义

发布时间：2018-05-07 11:11

本文选题：历史法学派 + 法治灵魂　；参考：《华东政法大学》2014年硕士论文

【摘要】：19世纪初，随着工业革命的完成，法学界求真务实的学术研究之风代替了虚泛的理想追求，古典自然法学派的支配性地位受到根本动摇，学术界对古典自然法学进行了猛烈的抨击，德国历史法学派就是在这样的背景之下兴起的。在发展了将近一个世纪之后走向衰落，作为一个学术流派长久以来历史法学派饱受非议和抨击，甚至被贬为保守和反动甚至倒退的代名词。反转而观之，透过重重的学术迷雾，我们似乎也看到了历史法学的耀眼的学术光环灼灼生辉，对后世的学术及当下的现实均有着深刻的影响。萨维尼及其所代表的德国历史法学派，在当时充当了学术研究从古典自然法学向实证主义过渡的纽带，使学术研究越来越实证化。历史法学的“历史的--系统化”的研究方法，在思维方法上彻底打破了古典自然法学时代纯碎的“二元论”世界观，无形中开创了法学研究的多元化时代。这也是本文研究的主要研究思路和内容。文章除引言和结语之外，主要分为四个部分：第一部分，概述历史法学派兴起的时代背景和学术背景，以及历史法学的主要理论谱系与演变脉络。19世纪初，古典自然法学走向衰落，在批判自然法学的浪潮之中历史法学顺应时代要求而产生并在德国不断发展壮大，成为19世纪最主要的学术流派。在其发展过程中逐渐分化为以萨维尼为代表的罗马法学派和以艾希霍恩为代表的日耳曼法学派，以及接下来的一系列演变和分化。第二部分，分析历史法学派的衰落过程及其原因。在历史法学缓慢的衰落进程之中，其衰落充当了学术发展从古典自然法学向实证主义过渡的纽带，使法学研究朝着实证主义的方向成功过渡。进而，分析历史法学的衰落主要是由其内部观点方法的分化决定的，其内部代表学派之间严重的分歧最终致使其走向极端化，走向衰落。第三部分，研究历史法学派的贡献及其影响。历史法学派，作为一个整体性的学派已然衰亡是毋容置疑的。但其学术观点及其方法并未彻底绝迹，相反被后世很多学派肢解吸收，甚至深刻的影响着其后的学术发展。它所蕴含的历史性的、民族性的法律观在当下无不有着深刻的现实意义。“反二元”论的思维方法开创的多元化学术研究时代更是影响深远。第四部分，论证历史法学派的现代价值及其意义。历史法学派虽然对后世学术起了重要的引导性作用，但是其所带来的法学研究多元化时代自身也暗藏着深深的“危机”，而在多元化时代自我解围的过程中历史法学派的很多经验教训又有着新的价值。同时，在当下的法治实践中，历史法学派所蕴含的民族性及人文性法律关怀都具有现实的指示性价值，在当下法治建设之中充分考量这些价值有着深远的意义。
[Abstract]:At the beginning of the 19th century, with the completion of the industrial revolution, the style of practical academic research in the field of law replaced the ideal pursuit, and the dominant position of the classical school of natural law was fundamentally shaken. The academic circles lashed out at the classical natural law, and the German historical school of law sprang up under such a background. After nearly a century of development and decline, as an academic school, the historical school of law has been criticized and criticized for a long time, and even dismissed as a synonym of conservatism and reactionary or even retrogression. Through the heavy academic fog, we also seem to see the dazzling academic aura of historical jurisprudence, which has a profound influence on the academic and present reality of later generations. Savini and his German school of historical law acted as a link between classical natural law and positivism, which made the academic research more and more positivist. The research method of "history-systematization" of historical jurisprudence has completely broken the world view of "dualism" in the era of classical natural law, and opened the pluralistic era of legal research. This is also the main research ideas and contents of this paper. In addition to the introduction and conclusion, the article is divided into four parts: The first part summarizes the background of the rise of the historical school of law and academic background, as well as the main theoretical pedigree and evolution of historical jurisprudence. At the beginning of the 19th century, the classical natural law declined. In the tide of criticizing natural law, historical jurisprudence came into being in accordance with the requirements of the times and developed continuously in Germany, becoming the most important academic school in the 19th century. In the course of its development, it gradually divided into Roman school of law represented by Savini and Germanic school of law represented by Eichhorne, as well as a series of evolution and differentiation. The second part analyzes the decline of the historical school of law and its causes. In the course of the slow decline of historical jurisprudence, its decline acts as the link of academic development from classical natural law to positivism, and makes the research of law successfully transition to positivism. Furthermore, the decline of historical jurisprudence is mainly determined by the differentiation of its internal viewpoints and methods, and the serious differences between its internal representative schools lead it to extremes and decline. The third part studies the contribution and influence of the historical school of law. There is no doubt that the historical school of law, as a holistic school, has disappeared. However, his academic views and methods were not completely extinct, on the contrary, they were dismembered and absorbed by many later schools, and even profoundly influenced the academic development afterwards. The historical and national legal view contained in it has profound practical significance at present. The thinking method of anti-dualism has a profound influence on the era of pluralistic academic research. The fourth part demonstrates the modern value and significance of the historical school of law. Although the historical school of law has played an important leading role in the later generations of learning, it has also brought about a deep "crisis" in the pluralistic era of legal research. However, in the process of self-solving in the pluralistic era, many lessons of the historical school of law have new value. At the same time, in the current practice of the rule of law, the historical school of law contains the national and humanistic legal care has realistic indicative value, in the current construction of the rule of law to fully consider these values have far-reaching significance.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D951.6

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