Slightly Discussion About West Marxism And Legal Science Methodology

The legal science may summarize according to its level from shallow to deep for the system, the idea, the methodology, any system by theory guidance, but each kind of theory has its methodology foundation, in other words, if the methodology is improper, from this forms the idea and the system on natural have the flaw. This article needs completely to overthrow the idea which and the system by no means becomes by the improper methodology, but is must point out flaw causes to each kind of theory ponder to be more comprehensive.Now Chinese legal science quite many theories above the Western natural law individualism's sports lotteries idea form the contract discusses takes the supreme truth, does not give the proof to take it as each kind of theory the premise , For instance in the Zhang Wenxian system elaborated it"right standard theory""In Present age Law of the land Philosophy Research Model's Transformation - - from Class struggle Model to Right Standard Model" in an article, his intimate borrowing contract theory"the state power originates in the individual right""the civil law surpasses the public law""the society and the country separates"and so on viewpoints to take the law of the land basic idea ,But he had not seen this kind of Western government by law idea the historical development, this idea is with the maintenance to the capitalism advantageous economic structure and politics, the cultural idea consistent, is only the capitalism reality piece interception, its logic with history not consistent, therefore, it can only use the hypothesized natural state and before the capitalist society's condition has tampered with by capitalism's method logic the natural law describes. Similarly, according to historical materialism's method, the socialist society same capitalist society financial circumstance distinguishes, the capitalist society take the open market as a foundation, what but in the socialist society not only exists is the open market, more importantly private economy development, therefore, applies mechanically West's government by law idea is directly inappropriate. Outside the jurisprudence the legal science domain, the people discuss particularly the legal community, this kind of instruction legal science development and the law construction's thinking mode is in vogue. This kind of situation has reflected two aspect questions: on the one hand, legal science researcher pay few attention to our country realistic question and our country other disciplines'research mentality and achievement, particularly of philosophy, sociological, economic; On the other hand, The legal science researcher lack the deep research on legal science guiding principle-Marxism, in conducts of research using the historical materialism methodology time easy to make two kind of mistakes; first, dogmatism; second, gives the total repudiation take the simple economical determinism and the class struggle as the outline reason. Making the thorough understanding to the historical materialism will be helpful to the rejection legal science theorists simple bringing principle and the dogmatism tendency.Marxism is guiding principle of Chinese legal science theory. Historical materialism is core methodology of Marxism, freedom of all people is ultimate value of Marxism. Historical materialism and freedom of all people are two fundamental point of spirit of Marxism,and they are inalienable. So the two is the main point of Chinese legal science theory. Historical materialism is the most fundamental, because if there is no correct methodology, the great value can not come ture. After the Marxism classical writer died, the capitalist society has had the tremendous change, the legal system and the legal science development is day by day mature, Western Marxist using the Marxism thinking method to the new environment, the new question has launched the thorough discussion, concentrated specially to the Western mainstream legal science idea critique, these theories had the profound enlightenment significance to the Chinese legal science theory's development. Certainly, Western Marxist places the Western developed country, its theory inevitable has the Western mainstream thought brand mark, but, is precisely because of these brand marks, we can discover them to the Marxism deviation, thus, from another one side surface deepening to Marxism understanding.This article 1st chapter from the methodology and the values angle of view - - modern times West philosophy's flaw - - hosts and visitors body dual opposition, metaphysics methodology causes in the values the abstract person two aspects to elaborate the Marxist philosophy to modern West philosophy surmounting as well as it after change modern West philosophy contacting. Subsequently with emphasis explains the Marxist philosophy and the West Marxist philosophy relations, particularly the West Marxism and deviates to Marxism's inheritance. And, to cause this article to have to the West Marxism methodology elaboration pointed, has carried on the analysis to the Western modern legal science's Representative Hayeke theory, promulgates its methodology foundation. Under the globalized condition, the classical liberalism economic is in vogue, takes its recent development the new liberalism ideological trend influence in world particularly China is now once more biggest, it involves politics, the legal science and so on each domain, certainly, also includes its methodology. But this ideological trend's representative the theory is the Hayeke theory without doubt, on the one hand, he takes the economist who Western new liberalism most has the reality influence to know by heart deeply the Western economic mentality, develops its legal science by this, thus, his law philosophy has the typical significance; Second, its theory represents the mentality is precisely West Marxism main critique object. Hayeke first is one modern West method philosophy representative, before he, the West method philosophy's theory way divides into two, one constructs the rationalism, one is evolution rationalism, what he abandons is the Western modern times law philosophy take Rousseau, Hegel as representative's metaphysics rationalism natural law theory, what but he venerates is take Adam Smith, Hume and so on as representative's empiricism evolution rationalism. Evolution rationalism, in Hayeke, establishes above the human discusses ignorantly with the knowledge dispersion discusses, this nothing but is vulgar economics free market theory in the philosophy variety . Each person's knowledge is limited, only then can obtain in the thought market according to the market rule free exchange instructs oneself behavior the information, in this market, the human is scattered, is atomic formula individual, the knowledge is scattered, according to the spontaneous order which forms according to individual between can organize the impetus social progress, but government's order cannot violate this order and its rule. In Hayeke theory, the human is the abstract person, but is the human who can sign the free contract, as for his property, the status and so on real content already was pulled out. Without doubt, this according to old is another kind is separated from the physical production condition metaphysics.The 2nd chapter most has the representation and commands the theory through the West Marxism theory to the West Marxism thought method to carry on analysis as a whole, these theories include: Manifests"the social being decision social consciousness"Ceorg Lukacs 's wonderful overall discusses, manifests the economic basis and west the overtop structure principle Gramsci,Antonio:"the national = politics society + resident society", manifests Marxism values Althusser to fill the theory, finally is manifests West Marxism comprehensively to the Marxism methodology and values succession Marcuse theory.The 3rd chapter, Looks at its methodology in detail through Western Marxist to the Western legal science idea's concrete study, at the same time, this kind of angle of view and the Chinese theorists' theory and the Chinese society's reality including questions and so on globalized, environmental protection technology, political democracy's law idea and realistic system joins, by better seeks the West Marxism to the legal science methodology significance.The conclusion lies, only then understands the Western mainstream legal science idea thoroughly in the methodology the background and the connotation, and relates the legal science and other discipline's method and the achievement, can learn with the Marxism methodology to instruct the legal science theory truly the development.