The View Of Conservatism-Introduce And Evaluate Legal Theory Of Oakeshott

As one of western politics philosophy ideological trends, the Conservatism has the deep historical foundation, also has had the profound influence to the western legal system and the legal science research. Since the Conservatism birth, it has also experienced vicissitude. This process also is a process which the Conservatism oneself unceasingly consummates. Michael Oakeshott, as the representative recognition personage of Conservatism, his unique political philosophy and elaboration of legal thought, not only has made the consummation and the development to the Conservatism, moreover also has the reality influence to England's political system. This article is for the purpose of through carrying on the narration and the commentary to the Oakeshott's legal thought, understands the real appearance of the Conservatism legal thought, dialysis the conservative thought foundation in Anglo-Saxons politics and legal system. And through Oakeshott's theory, the reconsidering limitation of western traditional legal science research technique and the breakthrough way ,reconsiders the focal point which the rule of law and the legal science research must be paid attention in China.Because many concrete legal matter in this article is huge, is unable to launch the discussion at large. Therefore this article mainly focuses on through Oakeshott's legal thought analysis, uses the method of pure theory or principle analysis, review the academic value of his thought.This article has first expounded the writing agent as well as the writing significance in the foreword. Then carries on the introduction to Oakeshott's legal thought, and carries on the synthesis evaluation to it .On the aspect of introduction about Oakeshott's legal thought:First, introduced Oakeshott and Conservatism legal thought philosophy epistemology foundation: Oakeshott not only has inherited the Conservatism tradition empiricism epistemology, and has carried on the discrimination between technology knowledge and the practice knowledge to the knowledge; He also discussed in the foundation of Conservatism tradition, developed the " pursuit of intimation " theory, caused the Conservatism and fogyism differentiated.Next, elaborated Oakeshott's national theory, has analyzed Oakeshott's classification from the different angle to the national: from the view which the country is one of moral union pattern, he divides it as the morality of communal ties, the morality of individuality and the morality of mass man; From the civil society's view ,divides into the country the citizen union and the enterprise unites; He differentiated the politics of faith and the politics of skepticism.Thirdly, this article has analyzed Oakeshott's elaboration about the rule of law: He approves of the national establishment above the foundation which the morals maintains; Has differentiated the legal rule and the order duty; And also thought the rule of law certainly does not equate to society's prosperity, the law is only form justice and the moral.On the aspect of evaluation about Oakeshott's Conservatism and the Conservatism: First, through Oakeshott's thought, the author summarized the characteristic of Anglo-Saxons Conservatism, expound the mining of Conservatism.Then summarized Oakeshott's development to the Conservatism .Author pointed out: his " pursuit of intimation " theory has conformity with the idea of tradition in traditional Conservatism, his discrimination between of Country and civil union enriched the theory of Conservatism.Next, the author analyzed the enlightenment about Oakeshott's thought to the contemporary Chinese legal science research. First, analyzed methodology significance of Oakeshott and the Conservatism, Pointed out its guides sociology research technique. And clear about this kind of research technique which take practice as the foundation is precisely our compounds rationalism and the tradition empiricism legal science methodology, as well as one kind of native resources when we facing dual challenge of the rationalism and the Postmodernism legal science; Also proposes a new methodology classified view, pointed out in the contemporary legal science research,we must mainly utilize sociological and the history study analysis way .Then, reconsidering the following four area: inevitability of limited government and independence of judicial organ, modernization of legal system and value of native resources, the civil society foundation of rule of law, and the relationship between rule of law and economic prosperity.Finally, through above analysis in this article, draws the conclusion, the author summarized Oakeshott's legal thought and the methodology connotation. And pointed out that his methodology path is the way of practice and real life. And this way is same to the path of sociological school of law and historical school of law. Also link the practice theory of Marxism, nail down the value of Oakeshotte and the Conservatism legal thought in construction of rule of law.