查詢結果分析
來源資料
頁籤選單縮合
題名 | 從體系論到自生的法律--盧曼法律社會學的析評="Niklas Luhmann's Legal Sociology--From Neo-functionism to Development of the Poietic Law" |
---|---|
作者 | 洪鎌德; | 書刊名 | 美歐季刊 |
卷期 | 15:1=141 民90.春 |
頁次 | 頁19-68 |
分類號 | 580.18404 |
關鍵詞 | 新功能論; 規範與認知的期待; 期待連貫的普遍化; 實證性; 衝突觀點; 法律體系的一體性; 自生自導法; 套套邏輯; 法律溝通; 人群之缺席; Neo-functionalism; Normative and cognitive expectation; Congruent generaliztion of expectation; Positivity; Conflict perspective; The unity of legal system; Autopoietic law; Tautology; Legal communication; The absence of people; |
語文 | 中文(Chinese) |
中文摘要 | 本文首述盧曼之生平、著作以及其學說之精博、體系之完整、文體之獨特。其次討論他評析古典法?社會學,特別是馬克思、梅因、涂爾幹、韋伯與帕林思諸氏有關法律與社會關聯的論述。接著鋪述盧曼初期的體系論與法律觀。當時卜視法律為一般化、普遍化規範期待之體系,目的在便利人群應付繁雜多變之社會,藉由法律特殊的排難解紛之功能,來化除社會之衝突。一九八○年代中期,盧曼在受到生物學自生自導理論的影響下,把此一理論引進社會學領域,進一步引用到法律體系剖析之上,是故成為自生法律學的新典範。他視法律為自我參照、自我觀察、自我描述、自我再製之溝通體系。西方先進法律體系之獨立自立,不受政治、道德、宗教之影響,在於法律之圓融連貫、一體性、統一性,也在於其效力之自我生成。不過,法律與治之關聯特殊,盧曼有所析評,本文特加標出。此外,本文鐐指出自生法律學說之優缺點,而在結論上將自生法律學之主旨,及其所激起近年間歐美研討之情形,作一摘要報告,以利讀者進一步之研究。 |
英文摘要 | This treaties deals with Niklas Luhmann's (1927-1998) legal theory and his sociological concept of law. It begins with a brief a productive and profound contempory German theorist whose intellectual capacity was comparable with his countryman jurgen Habermas. Owing to the inadequate and slow translation of his voluminous works in English, he was less known than his counterpart to the academic communities in the Anglo-Saxon countries. He treated with virtuosity all the aspects and sub disciplines of sociology-including religion, arts, knowledge, law, politics, economy, mass media, and sexual intimacy. Moreover, he attempted to construct a comprehensive theory of society composing all of above mentioned areas of social life. This essay firstly introduces his basic conception of law as a congruently generalized normative expectation. Law provides the premises of action, the security without which no coherent action would be possible. It is not only coercive, but more fundamentally facilitative. However, in the complex changing economic and social order of western advanced industrial societies, law becomes a matter of legislative decision and is equipped with positivity. In his later life, Luhmann argues that legal theory is part of the self-description and reproduction of the unity of legal system. Legal systems make, select, validate, and change the law. People accept the validity of legal decisions because the latter are made and selected by components of the legal systems: the legislature and the courts. As the legal systems become increasingly independent form the other sectors of society, they perform a unique function: the bring about general agreement concerning the behavioral expectation of different members of society. It means that law contributes to normative consensus. The law also hellps to resolve the conflicts that will inevitable emerge in the process of social communication. Luhmann developed in his later years the so-called "antipoetic law." For him, the legal system is self-referential and cannot communicate with its external environment. Because of the circularity of its communications, Luhmann referred to the legal system as a normatively closed system. However, in order to adapt itself to changing circumstances, the legal system has to obtain energy and information form its external world. This means that the legal system learns form its external social environment. Thus, its is a cognitively open system to its environment. In the final analysis, law has to fit society around. This article ultimately elaborates on the merits and deficiencies of Luhmann's legal sociology. Having discussed his view about the relationship between legal and political system, the paper concludes by evaluating Luhmann's contribution to the further development of legal theory and sociology of law. |
本系統之摘要資訊系依該期刊論文摘要之資訊為主。