作为一种"国家法与非国家法多元互动"的全球化进程——对"法律全球化"争辩的中立性批判

中国法学界的"全球化论辩"可以从"肯定"与"否定"这两种态度加以分析。以"国际化"与"全球化"的区分为参照性判准,可以发现,"反法律全球化"论者与对"法律全球化"持肯定态度中的"唯法律全球化"论者其实都处在着同"去国家化"相关的"法律一元论"这一层面上,只不过前者主张的是"国家法律一元论",而后者主张的是"非国家法律一元论"。"法律全球化"是一种在全球层面上展开的包含"法律国际化"的进程,是一种从"国家法律一元论"走向"国家与非国家法律多元论"的开放性进程。中国法学论者之所以尊奉"法律一元论",实是因为教条性地尊奉"法律的唯国家意志论"与"经济基础决定上层建筑"这两个经典论说的结果。

Globalization Process as the" Pluralistic Interaction between State Law and Non-state Law": A Neutral Criticism on the Debates of" Globalization of Law"

The "globalization debates" among Chinese lawyers boil down to two attitudes,namely positive and negative.With the distinction between "internationalization" and "globalization" as a referential test,it can be said that advocates against "globalization of law" and the "hyperglobalizers" among researchers with a positive attitude towards it are actually in the same level of "legal monists" related to "denationalization";the difference between the two groups of scholars lies in the fact that the former hold a monist view of state law while the latter that of non-state law.Globalization of law is a global process with "internationalization of law" as only part of it,and it is an open process from the "monist view of state law" to the "pluralist view towards state law as well as non-state law".Chinese legal scholars' insistence of the "monist view of law" is the natural consequence of their dogmatic persistence of two classic doctrines: law is the will of the state and economic foundation determines the superstructure respectively.