The Evolvement Of The Theory Of Legal Autonomy

The autonomy of law is a basic characteristic and key element of modern law. From the perspective of thought history, deconstructing the autonomy of law is a core topic of modernity problem of law which emerges with the advent of post-modern jurisprudence with the background of so-called"1960s Crisis". Therefore, how to understand the autonomy of law is a key point to fully comprehend modernity problem of law. Insofar as I can say now, there are some defects in the studies of legal autonomy at home and abroad except the original researches of some famous writers such as Max Weber, Niklas Luhmann, Robert Unger and Roger Cotterrell: Firstly, Concentrating on the introduction of thoughts of one scholar, lack thought-history reviews; Secondly, the research of legal autonomy as such presupposes the autonomy and self-containing of legal science, ie. limited to the perspective of legal science alone, without perspectives of other discipline, especially social theory; Thirdly, studying legal autonomy without combining it with law's modernity problem from the angle of the latter. In order to avoid the above shortcomings, this dissertation will use the approach of thought-history review centered on modernity problem, which means: Firstly, it adopts an approach of longitudinal review of thought-history; Secondly, it attempts a trans-discipline method oriented by problem not by discipline; Thirdly, it studies legal autonomy combining it with law's modernity problem.In the specific discussion, based on the investigation of theoretic thread of legal autonomy from Weber to Luhmann through post-modern jurists, the dissertation tries to concentrate on the relation between autonomy of law and law's modern problem to study the legal autonomy thoroughly. The reasons why the dissertation begins its analysis with Weber's legal sociology are as follow: (1) Weber's sociology appears as a face of the foundation of all the social sciences including legal science, so it offers us an"external perspective"in terms of social theory which can be used for the understanding of legal phenomenon; (2) Far more important, though, is that Weber's sociology provides us with a key to understanding of modern legal phenomenon including autonomy of law. The core of laws'modernity problem which emerges from deconstructions of legal autonomy pushed by post-modern jurisprudence in broad sense represented by Critical Legal Studies, Critical Race Theory and Radical Feminist Jurisprudence. So, we are supposed to analyze the challenges confronted by Weberian legal autonomy theory in the"post-modern complex society", based on the investigation the deconstructions of Weberian theory pushed by post-modern jurists. Therefore, in order to properly orientate the autonomy of law and its limitations in"Post-modern complex society", it is necessary for us to study the reconstructions of legal autonomy put forward by Luhmann's autopoiesis theory and Mark van Hoecke's communicational theory of law.Except for the Introduction concentrating on the theoretical constructing of the thesis or topic and giving some restrictive explanations, the article is divided into four chapters. In the Chap. II, the author mainly discuss the social-theory foundation of autonomy of law centering on Weber's theory of legal autonomy. From the survey of Weber's legal sociology, we can see that legal autonomy of law is a consequential conclusion of Weber's theory of rationalization (especially his theory of social rationalization); According to Weber's theory of rationalization (especially his theory of social rationalization), legal rationalization, as a part of social rationalization, is a logical premise of legal autonomy. Disenchantment of worldviews and differentiation of cultural spheres (science, morals and arts) offers legal autonomy a cultural condition, because differentiation of cultural spheres not only differentiates normative sphere of culture (moral-practical sphere) from other spheres of culture (cognitive sphere and representative sphere), but also distinguishes morality from law and make them independent each other. Capitalist economical system and bureaucratic system adhering to purposive rationality (formal rationality or instrumental rationality) bring legal autonomy economical and political conditions, while"formal-rational law"supplies it with internal (legal) condition making modern law distinguished primarily three formal properties: positivity, legalism and formality.In Chap.III, the author investigates the political and cultural dimensions of law in"post-modern complex society"according to the deconstructions of legal autonomy pushed by post-modern jurisprudence in broad sense represented by Critical Legal Studies, Critical Race Theory and Radical Feminist Jurisprudence."Post-modern complex society"is a value-pluralistic as well as cultural-and-political-pluralistic society. It is under the context that Critical Legal Studies, Critical Race Theory and Radical Feminist Jurisprudence emerge and begin to question the autonomy and neutrality of modern law from the cultural-and-political-pluralistic perspectives.For Critical Legal Studies, it visualizes the political dimension of law, ie. modern law which is autonomous and neutral at first sight boils down to politics, only reflecting the advantages of the upper class; As far as Critical Race Theory and Radical Feminist Jurisprudence is concerned, they reveal the cultural dimension of law, ie. modern law which is autonomous and neutral apparently only express the advantages of the dominant groups about race and gender ("law embodies male outlook","law is a slave of racist dominance").If law only reflects the advantages of the upper class or the white or the male, the formal autonomy of law is questionable. In this sense, the emergence of Critical Legal Studies, Critical Race Theory and Radical Feminist Jurisprudence challenge fundamentally the formal autonomy of law.In Chap.IV, the author studies the reconstructions of legal autonomy taking Luhmann's autopoiesis theory and Mark van Hoecke's communicational theory as an illustration. There are thought trends relativating or even denying legal autonomy under the pound of post-modern jurisprudence. But Luhmann and Mark van Hoecke argue for the reconstructive approach. Based on the system theory, Luhmann emphasizes its effects on diminishing complexity of modern society of legal autonomy, and reconstruct a new theory on legal autonomy, autopoiesis theory following the idea of strengthening the autonomy of law; Mark van Hoecke, a Belgium jurist, advocates a circular theory on legal autonomy which combines legal autonomy with legal legitimacy and seek for dynamic equilibrium between them, by bringing the"circular communication"between legal system and its inviroment (non-legal systems) into the view or horizon of legal theory.In Chap.V, based on the former studies, the author summarizes the review of thought-history of legal autonomy. The author dawns a conclusion as follow: the evolvement of the theory of legal autonomy mentioned above not only fits in with the process of interaction between"formal rule of law"("liberalist formal paradigm of law") and"substantial rule of law"("welfare paradigm of law"), but also incarnates the tension or even paradox between legal autonomy and legal legitimacy.