Logic And Historic Analysis On The Rationalism Of Law And Economics And Its Illumination

It is that birth and development can't depart from the rationalism, which, in a sense, the law and economics is the result of economics, law and rationalism. So, it is important that the rationalism is in the law and economics and is the base of the later. But, for the influence from pluralism of economic rationality and diversification of traditional law value, there is divergence on the understanding and choice for the definition of rationality, such as the pure rationality, the bounded rationality, the tool rationality, the value rationality, the substantial rationality, the formal rationality which are used by different scholars of law and economics in different study areas and in different degrees, so it suck into the confusion and became the theoretical hamper for further development. Meanwhile, abnormalities and counterexamples against rationality observed by the behavioral law and economics and the law game theory are attacking the rationality base constantly. Also, the ideology theory and the social norms theory are weakening the right of speech of rationality. So, where the rationalism should go that has been a hot issue of the law and economics circle and the resurvey upon the rationalism of law and economics becomes a kind of significant discovery naturally.In accordance with above-mentioned aim, it uses the methodology of scientific research program advanced by Lakatos to study the rationalism of law and economics preliminarily in this dissertation.Firstly, it studies the theoretical resource of rationalism of law and economics in this dissertation. It criticizes the wrong ides that the law and economics is the outcome of imperialism of economics while ignoring the function of law in the course of birth of law and economics, holds that the rationalism of law and economics is the result not from the only efficiency of tool rationality of economics totally but from multidimensional values of value rationality of law and points out that the rationalism of economics and the rationalism of law are common theoretical resources of the rationalism of law and economics.Secondly, it takes the static logic analysis on the rationalism of law and economics in this dissertation. It takes the rationalism of law and economics as a kind of scientific research program and therefore divides into three organic parts as hard core, protective belt and heuristics. Then it takes logic analysis on the hard core, protective belt and heuristics respectively, points out that it shall orientate as the coherence rationality of hard core of scientific program of rationalism of law and economics and shall study on its accessorial protective belts with different levels, that is, the Forbidden City Protective Belt theory and the Outer City Protective Belt theory. Meanwhile, it also takes logic analysis on the heuristics and so in the whole it straightens out the internal logic relations of rationalism of law and economics.Thirdly, it takes the dynamic history study on the rationalism of law and economics in this dissertation. In accordance with Mackaay's viewpoint on dividing development of law and economics into five different stages, it studies different performances of program of rationalism of law and economics in the above-mentioned stages. It points out that the rationalism is not conservative and complacent or unchangeable, but in the course of change and amendment from pure rationality in the produce offspring period of law and economics to the real rationality in the advance period of law and economics to vague rationality in the acceptance period of law and economics to bound rationality in the question period of law and economics to mutual rationality in the deep development period of law and economics. Amendments or adjustments on the research program of rationalism of law and economics from different scholars in different historic stages settle theoretical basis for reconstructing it.Lastly, it points out that it is necessary to reconstruct the research program of rationalism of law and economics on the above-mentioned articles in the dissertation. While it points out defects of the ideology theory and the social norm theory as the alternative research program of rationalism of law and economics in this dissertation, it also advances that the rationalism is the base of law and economics, which controls the developing direction of law and economics and therefore it shall never give up the research program of rationalism of law and economics in the development of law and economics. Then it puts forward the preliminary plan to reconstruct the rationalism of law and economics, that is, one is to take internal amendment on the rationalism of law and economics. It orientates as the coherence rationality of rationalism of law and economics in that it only keeps a kind of formal coherence relation between means and aim, which has much more elasticity and conforms to the hard core standard of scientific program of rationalism of law and economics, so it can't be refuted or falsified in order to give much more developing space for rationalism of law and economics. It shall adjust protective belts of scientific program of law and economics properly as giving up unreal accessorial assumes and reconstructing real ones to make the rationality hypothesis effective and applicable. Another is to take outer integration on the rationalism of law and economics. Since it constructs the whole human structure of rationality and non-rationality, and also the action choice for amalgamation of rationality and non-rationality is normal in the decision-making of actor, it is a kind of abstract and dictatorship of thinking obviously that it engages in sole analysis and study through departing from human's spiritual attribute. So, it points out that there is phenomenon constructed by rationality and non-rationality in the analysis of law and economics, which the rationality controls non-rationality and the later adjusts the former. It advances that shall take outer integration on the rationalism of law and economics through blending into non-rationality factors properly in order to avoiding the research program of rationalism of law and economics sinking into one-sided mistake on the basis that persisting the research program of rationalism of law and economics.