法律全球化:争论与出路

The Globalization of Law:Debate and Possible Solution

围绕着法律全球化问题,我国学者产生了有没有、要不要和如何进行的三重争议,由于这些争议是在没有对全球化做出前提性界定的基础上进行的,所以总是陷入事实与价值两极之争的困境之中。我们引入“过程”论来理解全球化的思想,意在指出从发展路向上看全球化有不同的阶段且每个阶段都有它的内在规定性。从当下的阶段来看,全球化已经把世界联结为一个异质的整体,从性质上说这个整体是事实和价值的统一体。它们一起对法律全球化的过程、制度和理念起着规制作用。理解这种“过程”论要求我们从根本上转换现代法的精神,即促进权利范式的发展、培育新的自由理念和参与全球法律制度竞争与全球治理。

Confronted with the problem of legal globalization, the academic circle in China originated the triple debates about its actual existence, its desirability and the possible approach to it. However, these debates proceed without the preliminary definition of the concept globalization and as a result they always fall into the dilemma between fact and value, the process thesis has been introduced to understand the conception of globalization. The significance of this is to view globalization as having different phases, each having its intrinsic logic. From the perspective of the present phase, globalization is connecting the world as a heterogeneous whole and in essence this whole is a unity of fact and value. They together exert regulation on the process, mechanism and ideal of legal globalization. This process thesis requires us a fundamental shift of the spirit of modem law, that is to say, to further the development of right paradigm, to cultivate new conception of freedom and to participate in the competition of global legal system and the global governance.