Font Size: a A A

The Philosophical Dimension Of Rule Of Law: The Transition Of The Conception Of Legitimacy

Posted on:2008-08-17Degree:DoctorType:Dissertation
Country:ChinaCandidate:Y LiuFull Text:PDF
GTID:1116360215453555Subject:Legal theory
Abstract/Summary:PDF Full Text Request
Legitimacy is an important concept that penetrates the overall significance of legal philosophy. This thesis takes"legitimacy"as the general concept of legal philosophy and interprets rationality, validity and legality as variants of abstract concept of legitimacy through double-layered pattern of"abstract-concrete", thus forming a kind of thorough understanding of legal philosophy. The title"the Transition of the conception of legitimacy"aims to explain the forms of legitimacy and its changes. This thesis holds that the concept of legitimacy is closely related to argument of legitimacy and is a subject with more significance in premises and basis.IntroductionPeople's view on law varies due to the cultural difference between China and Western countries. In Western culture, both jurists of natural law and legal positivists would like to identify"law"with"rule of law". As a result,"rule of law"is usually understood to be the essence of law in Western context. In Chinese culture, however, people are liable to hold the view that law is not equal to rule of law. Consequently, the legitimacy of law and the legitimacy of rule of law are identical in Western culture, whereas Chinese culture emphasizes the legitimacy of rule of law because people hold the idea that law without rule of law is only a tool for political power which possesses no premise for discussing legitimacy. The author of the dissertation support the point that rule of law is the essence of law. In order to avoid some problems concerning the legitimacy of law in Chinese context, this dissertation is entitled The Philosophical Dimension of rule of law——the Transition of the conception of legitimacy.Because both rule of law and legitimacy are complex issues, this thesis concentrates on studies of legitimacy limited by the theme of"rule of law". This thesis holds that for the legitimacy of rule of law to become a"problem"the basic condition is that law becomes the"supreme structure"in the authoritative system of a country's social order. Under such a condition, studies on legitimacy of rule of law is also suitable for the theme of social order or system.SignificanceTo annotate the philosophical dimension of law by way of legitimacy is one of the most important angles to penetrate into the philosophical concept behind rule by law. Theoretically, legitimacy is at the core of legal philosophy not only because it is the kernel of natural law but also because it will penetrate into the whole history of legal philosophy. Legal positivism will make no sense if isolated from legitimacy. On the other hand, the problem of legitimacy involves many aspects for it is closely related to the validity, legality, rationality and authority of law. Practically, the concept of legitimacy is a rational enlightenment. The natural generation and exercise of its reflection will promote national progress and development. Being the synonym of justice, legitimacy is the key element to social system and harmony. In contemporary China, the legitimacy of law has reached its maturity. The statement of law supremacy, administering policy and social transition has accelerated the exercise of law ruling; hence, the legitimacy and legality of law have been put forward.The concept of legitimacy can be divided into several categories. This dissertation, however, confined by the theme of"law ruling", will discuss its transition, which shows that people have deepened their cognition. As for categories, this thesis mainly interprets the concept of legitimacy from moral or rational sense. The concept of legitimacy is characteristic of reflectivity, generalization and integrity. It includes many variations, thereby acting as a general concept for all the problems discussed in this dissertation. Origin of LegitimacyBefore 18th century, the legitimacy of law had been explained through natural law, and it was the synonym of natural law. Diachronically, this concept was first put forth by modern western countries. Based on Hume ("be"cannot induce"ought"), people began to criticize and challenge traditional natural law. In a certain sense, Hume has represented the general problems and background of modern philosophy. The social value orientated with ancient ontology has undergone an epistemological turn. Dualism between value and reality, subject and object, subjectivity and objectivity has become the core modern social value. The main task of modern legal philosophy political philosophy is to handle the above-mentioned relationship. Represented by Hume, the explanatory foundation of legitimacy based on traditional natural law has been questioned. Hume has severely challenged traditional natural law and at the same time provided new possibilities for renewing explanations of natural law. On the other hand, the pluralism and ambiguity of concept of"nature"has made it inevitably suffer from challenge and crisis and at the same time, it also determined its validity after being analyzed, modified and clarified. Having found the reason why natural law would not work any longer, Hume promotes traditional approach in explaining legitimacy by dividing natural law in great detail. The concept of natural in three senses (descriptive natural law, teleological natural law and moral natural law) has great accelerated its own development.Rational Foundation for LegitimacyIn the history of western ideology, the concept of legitimacy has experienced not only the transition from ancient natural law to modern rational law but also the transition from rational law in rationalism to rational law put forward by Kant. So it is quite necessary to distinguish these two concepts ,otherwise,our understanding of rationality will be stopped at pre-Kant level. Kant philosophy has thoroughly overturned descriptive natural law, fulfilling the transition of ancient natural law. It has also gone beyond the rational concept in modern rationalism, thus laying the rational foundation for legitimacy. Only based on Kant's theory of Rationalism, can unity among morality, liberty and rationality be reached, thereby laying the new foundation for natural law. This concept is the rational one promoted by Kant. It has gone far beyond the simple contradiction between ontological rationalism and epistemological rationalism with its transcendentalism and re-explained the meaning of objectivity: objectivity is not the externalism contradicted with the subject but a general necessity based on subjective transcendentalism. Kant's concept lifted the object out of externalism and at the same time help the subject go beyond subjectivity. Due to this, Kant has accomplished his Kopernikic reform in philosophy. In the field of practical philosophy which is based on rationalism, the"golden rule", represented by Kant's"absolute order", has laid the final foundation for all values and become the prime theory of practical philosophy. Taking into consideration the dualism between"natural"and"liberal", Kant has advanced Hume's social value of"ought to be"and"be"and reached the state of self-discipline or self-rule. To some extent, Kant's concept of philosophy rationality has surmounted traditional binary opposition between subject and object and avoided the casualty of subject.However, Kant has only proved that rationalism can provide formal foundation for knowledge while the moral discipline based on rationalism can only provide formal rule for practice. New Kantians have put forth a new concept of"variable natural law". This concept can provide foundation for the development of legal positivism. Based on Kant's theory, natural law has been divided into two parts: the theory of natural law and the theory of legal positivism. At the same time, legitimacy of law has become a modern problem. Kant's philosophy is the key in understanding the relation between legal positivism and natural law.From Legitimacy to ValidityThe decline of natural law and the rise of legal positivism are the two sides of a coin. Different from those who view legal positivism as natural law, the author of the dissertation interprets the relationship between the two schools of legal philosophy from unity and holds the idea that the two will complement each other instead of contradicting each other. The rise of legal positivism can be said to be a reaction from modern world to crisis in natural law, or even the son of natural. The legality concept of legal positivism is also the result of the development of legitimacy. Legal positivism has broken the relationship between positivist law and natural law by isolating law from morality. Legality has taken the place of legitimacy to be the core of legal philosophy because it can reflect both such metaphysical limitations and weaknesses as absolutism, abstraction and uncertainty as well as a new understanding about the concept of legitimacy: legality is the realized form and existing state of legitimacy and the concept of legality is not a total denial of the concept of legitimacy but a trial to overcome some of its shortcomings. The author of this dissertation holds the idea that legal positivism has understood and handled the concept of legitimacy in a special way, reflecting the deep problem consciousness of legal positivism. Therefore, its relationship with natural law is rather to develop, complement and surmount epistemology and methodology than to contradict ontology. Compared with the theory of natural law, legal positivism has changed its focus: the former focuses on what law is while the latter emphasizes the validity of law. This thesis, through analysis of"an unjust law is not law","an unjust law is still law"and inverse proposition, declares that both the concept of natural law and legal positivism are two-sided. The author of the thesis thinks that legal positivism can do better in moral criticism compared with traditional natural law, because it separates real law and legitimacy in epistemology and methodology. Natural law takes law as justice, therefore it is easy for it to lose the ability to criticize real law. The difference between legal positivism and natural law should be understood through methodology and epistemology instead of understanding as contradiction in ontology. Taking all this into consideration, it is safe to say legal positivism is more comprehensive and reliable.Hart's theory in law is at the core of legal positivism. After breaking the necessary relation between validity and legitimacy, Hart and his followers try to show the binding of law by admitting rules, which can be reflected by the theory of social fact thesis,of which Coleman's theory of social convention thesis explained how law will have its binding on people and how it will have obligation on them.Legitimacy and Obligation to Obey the LawThe most significant result from the transition of legitimacy is the complication of law-abiding, which can be best reflected by denying law-abiding obligation. The usual theory of obligation to obey the law--consent theory, fair play theory, natural duty theory and theory of associative obligation—has its own plight, embodied in doubts and negation towards obligation of law-abiding. Through evolution of the concept of legitimacy and summary of the complexity of the theory of obligation of law-abiding, this thesis puts forward"separability thesis II". The point of this dissertation is that corresponding to the separability thesis between law and morality in legal legitimacy, there should be another separability thesis: to legal positivism, it means isolating legality from law-abiding obligation; to natural law, it means the separation between legitimacy and law-abiding obligation, which is called in this dissertation"separability thesis II"(consequently, separability thesis in legal positivism can be called"separability thesis I"). Based on the double negation of the two theses, legal positivism insists on the viewpoint of"supremacy in value"thereby laying the foundation for moral criticism. Separability thesis II also means relativity and formalization of positivism concept, proving from another perspective that it has something in common with natural law. As a result, we can say both natural law and legal positivism will try to maintain rule by law in order to fulfill promises made by liberalism although they have diverse viewpoints and methods.In the change of the concept of legitimacy, the most important and basic is the change from legitimacy of natural law (in narrow sense) to validity of legal positivism and this transition means that the concept of legitimacy has changed from absolution to relativity, from essence to form, from entity to process. However, this does not mean totally dispelling legitimacy; on the contrary, the concept of legitimacy will always be the prime value of all social system. Change of the concept of legitimacy is to deepen the understanding of it, not to get rid of it. Legitimacy is an approach to legitimacy, which is required by the nature of the concept.
Keywords/Search Tags:legitimacy, validity, legality, rationality, obligation to obey the law, rule of law, natural law, legal positivism
PDF Full Text Request
Related items