人本法律观的几点澄清

人本法律观是以人为本位去认识、体验法律,视法律为人所建构出来的人造物,主张法律是人追求美好生活的工具。法是死的,人是活的,有生命的人妥善操作法律,法律才能够发挥其促成人类共生乐活的功能。以人本的立场研究探讨法学,为避免不必要的误解与混淆,可从五个层面释明澄清之:首先是区辨人本与人文、人道的意义;其次从自然法的发展史考察人本自然法是自然法的最新型式,也是第五种自然法;再次强调法律之建构与变迁乃是应人之生活需求,人有如何的想法,就会产生如何的法律;复次说明法治并非人治,是秉人本精神依法治理,法治思维有工具性、社会性、过程性、抽象性、规范性和知识性等六个构成因素;最后,检视人本的法学方法论,循人性以论,一方面是理性与经验之融贯,另一方面则是视之为一种法律实用主义的方法论,采相对价值的伦理观,有其和谐致善的伦理向度,最终极的任务无他,运用法律使人类互惠共生,同享安乐。

Some Clarifications on the Anthropocentric Viewpoint of Law

The anthropocentric viewpoint of law is to observe and experience law as a man - made entity constructed by human beings and law is considered as a tool for people to pursue good life. Law is rigid yet man is lively,thus man can appropriately apply law so as to keep law functioning and rendering happiness to all mankind. To avoid unnecessary misunderstandings and confusions about the said anthropocentric interpreta-tion of law,five aspects of clarification are listed as follows. Firstly,the difference between anthropocentricism and humanism or humanitarianism should be specified. Secondly,the natural law of anthropocentrism is the fifth and also the latest of natural laws in legal history. Thirdly,the making of law and its modifications are all response of human beings’need in daily life. What the law is and how it works depend on how man thinks. Fourthly,the rule of law is not the rule by man but rather according to the anthropocentric spirit. Six elements constitute the mentality of the rule of law,namely,being instrumental,social,abstract and normal with process and knowledge. Fifthly,the anthropocentric methodology of legal science adheres to human nature. On one hand,the method is interfusion of reason and experience and on the other hand it is a legal pragmatism with its ethic value being relative and harmonized towards good. Thus the ultimate mission of law is nothing but achieve mutual benefits and happiness. Finally,this paper is accomplished with seven conclusions for ref-erence.