凯尔森法学思想中的新康德主义探源

The Influence of Neo-Kantian Philosophy on Kelsen's Legal Thought

汉斯·凯尔森的法学理论与新康德主义哲学之间的内在关联已为学界所周知,但究竟是何种关联以及如何关联的,却并不清晰。作为德国二战前最重要的哲学思潮,新康德主义是凯尔森法学思想的灵感和基础所在。无论是马尔堡学派的先验认知理论,还是西南德学派的判断和效力学说,都为凯尔森所继受,并纳入到其法学理论大厦的建构当中。正是建立在这两个学派基础之上的凯尔森法学理论,为法学成为一门科学奠定了几乎所有重要的概念。这些新康德主义要素就此成为凯尔森法学乃至法哲学思想研究必要的对象。然而,凯尔森自己却几乎没有专门论述过新康德主义思想。通过调查,本文不仅揭示两者之间的关联,也试图间接为我国学者建构中国自身的法学理论提供某些有益的启示。

The inherent relationship between legal thought of Kelsen, one of the leading jurists of the 20th century, and neo-kantian philosophy is well known by academic community. However, the kind of the relationship and how they interplayed with each other is unclear. Being the an not most important trend philosophy worked as only absorbed theory of the of philosophical thought before the very inspiratio transcendental World War II in Germany, neo-kanti- n and foundation of legal thought of Kelsen. Kelsen has cognition Marburg-Neokantianism, but also doctrine of judgement and validity from Heidelberg-Neokanitianism. It is right on the basis of these two schools of thought that Kelsen＇ s legal theory has shaped almost all fundamental concepts of jurisprudence, with which to establish legal science as a branch of science. Consequently, these key elements of neo-kantianism are studied by Kelsen＇ s legal thought and even by philosophical thought of law. However, Kelsen himself has scarcely expounded neo-kantianism in his own writings. The author, through exploration and study, tries to reveal the kind of relationship between legal thought of Kelsen and neo-kanitian philosophy, and also, to provide some helpful enlightenment for the construction of Chinese legal theory.