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英国Paper代写:The ecology of legal methodology

2019-07-15 | 来源:51due教员组 | 类别:Paper代写范文

下面为大家整理一篇优秀的paper代写范文- The ecology of legal methodology,供大家参考学习,这篇论文讨论了法学方法论的生态化。法学方法论的生态化最早是由环境法学家提出来的,环境的危机引起环境法学者以及法律界人士对人与自然关系的重视,进而提出了法学方法论生态化分析的观点。法学方法论的生态化并不是对传统的法学方法的简单的否定与斗争,它更多的是对传统法学方法的改革和创新,体现的是一种多元化格局的动态过程。

The ecologization of legal methodology was first proposed by environmental jurists. Environmental crisis caused environmental law scholars and legal professionals to attach importance to the relationship between man and nature, and then proposed the viewpoint of ecological analysis of legal methodology. The traditional jurisprudence methodology has a one-sidedness in guiding the relationship between man and nature. The ecologicalization of jurisprudence methodology is a reasonable revision and development of the ecologicalization of traditional jurisprudence, not simply a subversion and negation of its traditional jurisprudence methodology. This paper is mainly based on the concept definition and understanding of the ecological methodology of jurisprudence, reflecting on the limitation of insufficient transformation in the process of referring to the whole theory of ecology, the system theory and the coordinated development of the ecological methodology of jurisprudence, and finally analyzing the impact of the ecological methodology of jurisprudence on the study of jurisprudence.

In ancient Greece, "method" meant "the right way". In xinhua dictionary, "method" refers to the way to accomplish something. Methodology, on the other hand, is a general theory of law. "In the most general sense, the method is the specific mode of action that people take to solve a problem, both mentally and practically. Methodology is the method of organizing and theorizing specific methods of decentralization in an area. Methodology plays an important role in the study of law, and the scientific nature of research methods plays an important role in the efficiency and correctness of law research. The methodology of jurisprudence refers to the general theory derived from the study of the methodology of jurisprudence. "On the one hand, methodology of jurisprudence is not only the result of reflecting on the process of jurisprudence cognition, but also the important condition and element of constructing jurisprudence theory, as well as the means and logical premise for the formation of certain legal theories, concepts and systems "

It is much easier for us to understand the ecologization of legal methodology after grasping the exact meaning of the ecologization of methods. The ecologicalization of legal methodology refers to the legal research process of studying the overall change and development of legal methods on the basis of the original theories, guided by the concept of ecological holism, system theory and coordinated development, and combined with the law of harmonious development between man and nature. The result of the ecologicalization of legal methodology is to distinguish it from the traditional legal methodology, and finally make law a rational norm to realize the sustainable development of mankind.

The methodology of traditional jurisprudence is to judge the value of law and the design of system centering on human beings under the guidance of the epistemology of "two subjects and two subjects". Under the guidance of traditional legal methodology, legal rationality always looks at and inspects the operation and development of all things in the universe in accordance with human's own values and interests. People always ignore the long-term interests, only for the immediate interests, unrestrained to the nature to ask for, ignored the natural resources and natural carrying capacity of the limited. Therefore, the legal order guided by the traditional legal methodology, while guiding the advance of human civilization, is accompanied by environmental deterioration and a series of environmental crises. The introduction of the concept of "ecological" in the field of law is to solve the rational needs of environmental deterioration and a series of environmental crises. In the methodology of jurisprudence, the concept of systematic view, overall view and coordinated development of ecology are introduced, the design mode of legal value and legal system are adjusted, and the concept of harmonious development between man and nature is taken as the guiding ideology to guide the development of legal science. In short, the concept of ecology is introduced to supplement the value judgment of law and the design standard of system.

First of all, the ecology of jurisprudence methodology has a broader research horizon. The ecologicalization of legal methodology is no longer limited to the study of human society itself. More importantly, it extends the research field to the whole nature. Its legal system design and value judgment should not only meet the development needs of human society, but also meet the harmonious development needs of human and nature. Only laws that conform to the natural ecosystem and the development needs of the natural ecosystem are the rational laws that human society needs.

Secondly, the ecology of jurisprudence methodology is the unity of methodological value judgment and factual judgment. Legal norms regulate people's behavior by "ought", but the "ought" in such legal norms is quite different from the "ought" advocated in natural law. The "ought" in legal norms is only in the sense of the validity of norms and the legal norms that people must abide by. To a certain extent, the law of "ought to be" in the natural law can be said to be the law of justice. In short, "ought to be" means what the gain and loss should be. The ecologization of jurisprudence methodology requires the unification of fact judgment and value judgment.

Finally, the ecologicalization of legal methodology is the re-development of the epistemology of the traditional "subject-object dichotomy" law. Under the guidance of traditional epistemology, legal rationality is actually a contradiction between man and nature that cannot be coordinated. If human society wants to develop, it is inevitable that it will violate the laws of nature at the expense of the environment, which will affect the long-term survival and development of human beings. The ecologicalization of legal methodology is the re-understanding and re-development of the traditional "subject-object dichotomy" law, the adjustment of the harmonious relationship between man and nature, and the summarization of the legal rationality of human society from the perspective of the integral view and system view, which are equally important between man and nature. We should not only attach importance to the special laws and development requirements of the development of human society, but also ensure the harmony of the survival and development of human society in the natural world, so as to ensure that the legal norms established by human society not only conform to the laws of social development but also meet the needs of natural development.

At present related laws and regulations has been from a single to achieve economic benefits for its legislative purpose and value orientation into both ecological benefit for its legislative purpose, this suggests that the study of law is from the traditional "economic man" for the idea to "ecological man" for the idea transformation, this shift is ultimately expressed in the legislation, and then through the judicial, law enforcement, and other laws. When the whole legal standard system changes, the inevitability of the ecological study on the legal methodology of the legal system is beyond doubt. However, the introduction of ecological method into jurisprudence only adds a specific method to the study of traditional jurisprudence. However, there is no challenge to the theory of "people-oriented" interest measurement mechanism and two-part research mode of traditional jurisprudence research.

First of all, fact judgment and value judgment are indispensable in legal thinking, which does not mean that fact judgment and value judgment can be integrated. To pull value judgment back into the value choice of law does not mean that fact judgment and value judgment can be unified. For example, the regulations on the implementation of euthanasia and human cloning are very clear, but there is a great controversy on value judgment, and it is difficult to regulate these problems in law.

Secondly, the holism of ecology methodology is borrowed, while individualism is ignored. Ecology also has the distinction between holism and individualism in methodology. The whole is an abstract theoretical model, not the empirical object of the world. Even the methodology of holism cannot simply observe and examine the ecology from the perspective of system or the whole. In fact, the concept of "whole" is a vague concept. Except for the relatively simple social stage, it is almost meaningless to explain changes through the whole social reality, and the concept of "whole" has no practical operational significance. This means that the concept of "whole" seems to be able to observe and analyze facts more comprehensively, but in fact "whole" is a useful unit of analysis only on the basis of combining "individuals". Finally, the question about the integration of main customers. Anthropocentrism sets the value order of human being over nature, which does not necessarily lead to the cognitive model of subject and object becoming the basis of epistemology. Similarly, the theory of "subjective and objective dichotomy" does not necessarily lead to the formation of anthropocentrism, and the same epistemology will obtain different value theories. Under the guidance of modern theories, man and nature are in a state of opposition or alienation, which is just a world structure, in the ontological sense, not in the epistemological sense. Although ontology, epistemology and axiology are interrelated, problems at different levels cannot be integrated. In the theory of ecology on which legal methodology relies, there is no discussion of "subject-object integration" in methodology, but dissolving the objectivity of cognition is not equal to dissolving the cognitive model of subject and object.

After the establishment of ecological methodology of law, legal relationship main body range from traditional methodology of law the legal relationship main body position of extended to some people and nature is closely related to the survival and development of some of the "content" of the main body status, these "things" under the certain conditions will the protection of the law of active consciousness, to realize the harmonious development of man and nature. Wildlife system of personality, from the legislation is designed to give the subject qualification of personality, and wildlife in the traditional system of litigation agency and legal fiction theory as the foundation, combined with talent relations, the rights and obligations of both the common interests of human society and wildlife, created to protect the rights of the wild animals as the core of a special kind of legal system. The inclusion of wild animals into the scope of legal subjects will not only make their rights more protected, but also facilitate the realization of ecological legal methodology.

The traditional methodology of jurisprudence is mainly centered on "man", aiming at constructing a harmonious and progressive legal system of human society. However, the ecologicalization of legal methodology is different. On the basis of emphasizing meeting human needs, it not only projects its vision on human itself, but also extends its vision to the vast nature. It requires us not only to meet the development needs of modern human society, but also to live in harmony, progress and development with the nature. We should not only be able to meet the needs of the present generation, but also bring benefits to future generations, that is, achieve harmonious development between man and nature and realize intergenerational equity.

After the ecologicalization of legal methodology, the expansion of legal subject will inevitably lead to the breakthrough of litigation subject. The ecologicalization of legal methodology refers to the process of studying the overall development and change of legal methods on the basis of the law of harmonious development between man and nature. The ecologization of jurisprudence methodology brings the nature into the scope of the subject, greatly enlarges the scope of the subject, endows the "thing" other than "man" with certain legal status within the limits of law, and realizes the goal and requirement of the harmonious coexistence between man and nature.

The ecologization of jurisprudence methodology is not a simple negation and struggle against traditional jurisprudence methods, but more a reform, innovation and amendment of traditional jurisprudence methods, which reflects a dynamic process of diversified pattern.

The ecologicalization of legal methodology can become a rational law regulating human behavior and realize the harmonious coexistence between man and nature, which is the inevitable requirement of social development and the gist of ecological civilization. The ecologicalization of jurisprudence methodology leads rationality to conform to the interests of human beings without violating the laws of nature, which provides a guarantee for the survival and sustainable development of human beings. The ecologicalization of jurisprudence methodology has made a deep reflection on the contemporary environmental crisis, and warned people to pay attention to the serious ecological problems and reflect on human behavior.

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