Law Among Sensibility, Reason And Will

Western natural law theory and western metaphysics thought are in the same way, or said, natural law theories are metaphysical theory. This metaphysics is being struck by kinds of thoughts, its legality seems exhausted. But is the thing true? This article attempts to discuss the traditional Western metaphysical theory of natural law and sort out the difficulties that on the basis of analysis of this theory faced, and discusses thinkers such as Hume, Kant and Bentham, Austin, Kelsen, Hart, Husserl, Scheler Habermas, how to overcome the difficulties of the natural law theories, from the perspective of thoughts histroy.This article first discusses the metaphysical tradition which begins from ancient Greece. This tradition is declared by Plato, but this metaphysical tradition has its theoretic dilemma, how communicate the world of aletheia with the world of doxa, and the world of idea with the world of actuality and experience, and how build the metaphysical object in the way from bottom to top and elucidate them from top to bottom. Just the dilemma made the later metaphysician can not but makes great effort to settle out the problem. And that, anti-metaphysical thinker refused metaphysics because of this reason. At the same time, this article also discusses the foundation and start building metaphysics, which is the finite of human. Just because human is finite and human experiences the finite, and therefore apprehends the existence of infinity, primordial religions appeared, and along with the increase of knowledge, the infinity was thought as the metaphysics object. Therefore, religion and metaphysics have a natural affinity, this affinity makes Christianity as a belief, use the ancient Greece metaphysics to demonstrate the existence and attributes of God, after getting a dominant position in the West. Whether it is God in Christian theology metaphysics or the metaphysical object in traditional metaphysics, all are established arbitrarily, and have not the characteristics of clarity in thought. People can not clearly establish metaphysical objects, then metaphysics, and metaphysical objects and God are invalid. Thus, this paper, on the basis of thinking the thinkers' thought in history, absorbing and borrowing Husserl's phenomenological theory, the ontology of Heidegger and so on, attempts to establish a non-arbitrary metaphysics,. This metaphysics that accepts a metaphysical infinite object's existence, at the same time opposed to thinking it as Almighty God. From the people can not knowing it absolutely, the object is only a metaphysical absolute "being", "empty "concept. And while this metaphysical object, the infinity show itself for people, through people's experience and intuition , show themselves in form of time and space, also said, people can apprehend the infinity through their intuition.After that, this paper discusses the origin of the western natural law in the ancient Greek thinking. Early ancient Greeks being aware of the finite nature of his, ascribes the basis of their rules of conduct to divinity. The concepts, themis and dike, embodied this point. Then gradually the people thought this infinity as "physis" (natural), and in sophist's school, a argument on nature and nomos appears. After Socrates and Plato established metaphysics, the dispute on Nomos and Physis (nature) have a more clearly metaphysical significance. Subsequently, In Aristotle's articles, a distinguishment between physikon dikaion and nomikon dikaion appears. This is the embryonic form of the distinction between natural law and positive law. In Stoic School, especially in Cicero, the dualism of natural law thought was the first time clearly stated.After the Christian Achieved a dominant position in western, the natural law had the theological form, so, the paper discusses Augustine, Aquinas, scouts' and Occam's thinking. Augustine and Aquinas are rationalism and believe that the priority of God's reason to his will, God's eternal law is rational, and scotus and Occam believe the will of God is free, while Occam considers that God is unknown, but a faith. Such, God's will can formulate rules arbitrarily, as a belief. In this way, the natural law as product of people's reason is uncertain, in the midst of change. Hence their natural law theory is arbitrary theory.After the decline of the church status, natural law was thought with a new form. This form of natural law began to demonstrate the legitimacy of mundane power, and this is Hobbes' thinking of the social contract. While Locke is trying to make social contract theory and the natural law as start point demonstrate he restriction on the mundane power. This thought was developed as the separation of powers by Montesquieu's thinking. Classical Natural Law still took human's reason as the foundation of natural law, and found the final basis in God, it is also arbitrary.So far natural law thought and metaphysics were all arbitrary, did not really communicated up natural law with positive law. So, long history of thought has made efforts to overcome this dualism. In ancient Greece, the Epicures school had already started to doubt it proceeding from the emotional experience, they thought justice is nomos. In modern times, the Empiricismof Hume starting from the emotional Ethics, establishes justice on the emotional desires and feelings, rather than reason. Hume took reason as the ability of knowledge, not as the moral capacity, and later in Kant it was objected. Kant opposed this disposal of Hume, and tried to establish natural law from practice reason and free will, this natural law is a rational method. However, history has not developed in accordance with Kant's ideas, in Bentham's utilitarianism; Bentham started a foundation for the law from the emotional pain and the joy. The legal theory of evolutionism and Savigny, a national law is the product of National spirit. Along with the development of science, a wide range of empirical trend of thought developed, because of the impact of this trend of thought, metaphysical ideas were rejected, the Legal Positivism obtained booming development which rejected natural law, refused to value judgment in law, and advocated value-free. Such anti-metaphysical position, Emotional ethics, led to the Skepticism in law, relativism in justice.All skepticism and relativism contradicted with the direct experience of man. Therefore, Neo-Hegelianism, and Neo-Kantianism, and Neo-Thomism which opposed utilitarian and emotional ethics came out. They want to reconstruct natural law. Fuller then developed a procedure natural law to oppose the Legal Positivism's exclusion of the value. But they still have arbitrary factors in the theory, in Neo-Hegelianism, and Neo-Kantianism, and neo-Thomism, God is still active, they are arbitrary, and Fuller's procedures natural law did not answer why the law should abide by the law of this clearly t. Therefore, he does not have the natural law really built up.Husserl and Scheler refuted positivism and relativism from their study of thePhenomenology. Husserl tried to back to the subjective visual field------the life world,to refute the shelter of the objective attitude of the natural world to significance, and opposed trend of Positivism. He established the formal ethics, ethics in the form of logical rules against skepticism and relativism. Scheler, on the basis of the opposition of Kant's formal ethics, in the way of eidetic intuition and moral insight established the rules of emotion field, and established the values and their order of the hierarchy. Scheler's opposition of the nominalism and judgment of ethics ethical, as well as his discussion the relationship between "ought to be" and values, norms and value provides us with a lot of meaningful inspiration. Habermas from the perspective of inter-subjectivity, uses his discourse ethics to enunciate the legality of the law .On the basis of critically reference of the past thoughts, in particular the use of Kant's thought of "thing in itself, Husserl's thoughts of evidence of intuition, and scheler's establishment of the absolute value and the order of levels, the establishment of a new natural law is possible. This natural law, on the one hand, we recognize the natural law as infinity exists, this natural law as infinity established in the intuition and the reflection of intuition, at the same time rejected the setting of its content, so this is only an "Absolutes", and concept of absolute "Nothing" , and absolute ", Being ", on the other hand, the natural law can be apprehend by person in the way of intuition in a sense, and that it can be legislated in the positive law. In this way , the dualistic opposition of natural law and positive law was communicated up. This ensures the "pressure" of natural law to positive law, and also avoids the disseverment between natural law and the positive law.