霍布斯与柯克的理性概念之辩

The Debate on the Concept of Reason between Hobbes and Coke

霍布斯与柯克之争的核心问题是权威抑或智慧立法。柯克的中世纪理性概念预设了超验规范的存在,这对于制衡王权,维护英国司法精英的地位具有重要意义。另一方面,超验秩序的信念对于近代个人主义的兴起却是重大的阻碍。同时,判例法主导的普通法,徘徊于法律发展的拟制和衡平阶段,不能满足近代国家对于大规模立法创制的需要。霍布斯的"法律命令说"是对传统普通法第一次全面的理性批判,奠定了英国法近代转型的哲学基础。

This is a key problem of the debate between Hobbes and Coke. Coke＇s medieval con- cept of rationality presupposed the existence of transcendent norm, which had important signifi- cance to balancing monarchy and maintaining the position of the British judicial elite. On the oth- er hand, the medieval belief in the transcendental hierarchical order baffled the rise of individual- ism. Meanwhile, case law as the basis of common law had stayed at the stage of the legal fiction and equity,and it cannot meet the need for large-scale legislative initiatives in modern society. Hobbes＇s ＂command theory of law＂, which is the first critique to the common law, has laid the philosophical foundations for the transition of the law of England.