Font Size: a A A

On The Legal Formal Rationality And It's Crisis And Solution Under The Background Of Modernity

Posted on:2009-08-23Degree:MasterType:Thesis
Country:ChinaCandidate:C LiuFull Text:PDF
GTID:2166360242987673Subject:Legal theory
Abstract/Summary:PDF Full Text Request
The development of the formal rationality of law is one of the most important dimensions of legal modernization ,so it is necessary to put the problem under the background of modernity. the theory of modernity purposes to describe a historical prospect different from the era of premodernity. Although opinions on modernity are widely divided, it was regarded as rationality since Marx Weber use this word to summarize the process of European civilization. The legal formal rationality occurred under the background of modernity. The formal rational law aimed to construct an autonomous system by law making, thus, the jurisdiction become a process of legal reasoning with legal concept and logic in the closed legal system, and by these ,the decisions obtain certainty. The formal rationality of law agrees with means-ends rationality of behavior in modern society and contributes greatly to the establishment of liberalism state. The development of legal formal rationality is the most important aspect of modernity, but the extension of means-ends rationality resulted in the recession of value rationality. Thus, the modernity contained a crisis. To agree with this, there are theoretical criticism on legal formal rationality in jurisprudence, with the emergence of the welfare and regulatory state, the law's materialization puts the legal formal rationality in crisis. Although the law's materialization in welfare and regulatory state aimed to alleviate the tension between formal rationality and substantial rationality, it's legal paternalism character bring great question to the legitimacy of this type of law. Habermas puts forward the theory of communicative rationality and communicative action ,reconstructs the modernity. and then, Habermas introduce a new proceduralist paradigm of law to solve the crisis of formal rational law's materialization. As to china's legal modernization, we should lay emphasis on legal formal rationality and keep an eye on the importance of legal materialization and the proceduralist paradigm of law in theory and practice.
Keywords/Search Tags:Modernity, Legal formal rationality, Legal materialization, The proceduralist paradigm of law
PDF Full Text Request
Related items