人本法学方法论初探

人本法学方法论系以人本主义为研究法学方法论的基本立场,从四个前提假设出发展开论述,引用人本精神之衍生含义十项,分别点出哲学论、现象论、技术论和实践论四个部门的特色,以及通观整体的人本权利义务观。在哲学论,先叙述由神本到人本的思想蜕变,再列出四个先设假定,随后的人性观分成先天的理性和自由两个本性,与后天的互助和道德感两个习性,而美国土产哲学实用主义则是人本法学方法论的哲学基础和研究方法。在现象论,探讨法学与人之存在关系,认为法学之存在与衍化,肇因于法学研究者研究意识之渐觉和时代信念之影响,民主社会的法学方法论之争持现象,可用伞架原理说明之,法学新旧之更迭传承,乃是法律文化之绵延。在技术论,考察法学如何切入挺进研究活动,人生的体验,悟出一套"事实─理想─行动"的三层面剖析法,法学知识可经由融贯理性与经验获得之,法律虚拟以假充真,可巧妙解决囿于现实的困境,研究技术之提升达到艺术之境,则有赖法学研究者的生活美感修为。在实践论,焦点聚集在研究态度,态度之自来,与法律人七加三的特质、浪漫而中节的胸襟、怀疑主义的精神以及和谐致善的伦理向度关系至为密切,法律研究的实践历程,既能凸显人本精神的人道与人伦,更能揭示法学以人权和人义实现人类共生乐活的理想。

Exploration of the Anthropocentric Methodology of Jurisprudence

Anthropocentrism is the basic standpoint to study the anthropocentric methodology of juris-prudence which developed from four premised presuppositions. There are four parts in the province of the present methodology, namely the philosophical, the phenomenal, the technical and the practical theory. And the ten items of the anthropocentric spirit are introduced into the four parts as their characteristics and comprehensiveness of the whole picture in which human rights and duties are viewed. Firstly, the philo-sophical theory is discussed, including the change of legal thoughts from divinity to humanity, the four pre-suppositions of legal anthropocentrism, the human nature divided into twofold: the born reason and liberty as the former while mutual aid and the sense of morality as the later. Meanwhile the American pragmatism is the foundation and research method for the present methodology. Secondly, the phenomenal theory is men-tioned, including the relationship between the coexistence of jurisprudence and human beings, the vicissi-tude of jurisprudence affected by the jurisprudents owing to the law of increasing sensibility and discrimina-tion and the conviction of times, the confronting theories in democratic society which can be interpreted in the Principle of Umbrella Structure, the handing down and over of old and new jurisprudence, and the dura-tion of legal culture. Thirdly, the technical theory is presented. It is a survey of entry points with regard to research activities, such as the set of “facts, ideals and actions” which is a method of threefold analysis, legal knowledge acquired through combing reason and experience, legal fictions made as real as facts to skillfully avoid the deficiency of facts, and the possible transmutation from technique to art depending upon legal scholars’ sense of beauty in daily life. Fourthly, the practical theory is focused on the attitudes of re-searchers, including the source of attitudes closely related with the seven-and-three characteristics of le-gal persons, the romantic but moderate way of thinking, the spirit of skepticism, and the ethical dimension to achieve harmony and goodness. The process of legal study highlights not only the humanism and ethics of anthropocentric spirit but also the ideal of jurisprudence which is to realize the happiness of humankind as to live together by means of human rights and just.