【作者】 张健；

【导师】 姚建宗；

【作者基本信息】 吉林大学 ， 法学理论， 2005， 硕士

【摘要】 罗尔斯在有关正义的论述中,强调社会基本结构这一基础对正义的重要性,罗尔斯的正义观是实质正义,这种实质正义涉及法律的正义问题。“无知之幕”和“良心拒绝”两个概念是理解罗尔斯法律正义思想的基础,并且这一基础是相互联系的。本文从罗尔斯法律正义思想演进展开论述,并通过与其它正义理论的相关性研究,揭示罗尔斯法律正义思想的特点。在罗尔斯法律正义思想中,他主张权利优先性原则,这一原则代表了罗尔斯法律正义思想,是通过法律方式表达人的自由。本文认为“无知之幕”和“良心拒绝”分别代表了法律合理性和正义合法性两条演进路径。更多还原

【Abstract】 John Rawls is a great philosopher, he cares about the society, prudent theory, he makes people re-recognize the importance of people’s value, and this kind of importance does not pass the empty preach, but it is finished that the persuasion of the theory comes. His just theory is mainly to criticize utilitarianism and launch describing , and there are basic differences with the latter, utilitarianism has already damaged a minority’s freedom while realizing freedom in John Rawls’ view. John Rawls, while setting up one’s own just theory, on one hand, with the aid of the traditional social contract theory in the west, on the other hand, the influence deeply with traditional liberalism, emphasize essential justice, essential justice is liberty. At present, the domestic study on John Rawls, the ones still remained in its main document and view guided and laid , it accepts that how to be coherent to say , further investigate little about someone whose Influences on John Rawls, mainly such thinkers as Jonh Locke , Immanual Kant , J.J.Rousseau , J.L.Mill and Karl Marx ,etc. deeply, this kind of influence is not through accepting the view to embody briefly, but to combine forefathers’ view in one’s own just theory , John Rawls has accepted the soul of their thought, as one’s own career. John Rawls has put forward " the veil of ignorance " and " conscientious refusal ", the understanding of the thought can not leave its just theory from these two concepts. " the veil of ignorance " is supposed, but " conscientious refusal " is the restriction on this contract , they are not to overthrow existing law, but to understand and perfect law, and to affirm the status of the law constantly, and to establish the authority of the law, this kind of authority is an idea of justice. Because the " conscientious refusal "is relevant to that how to obtain justice, so this concept contain the far-reaching meaning, until while explaining the similar thought on obtaining the just level of the essential justice in the " political liberalism ", John Rawls’ essential justice is still the expansion on the basis of thought of " conscientious refusal ". The plot of John Rawls’ just theory is ingenious , absorbing the result of the older generation’s thinker’s theory strong point, therefore, its content is mighty, receiving extensive criticism at the same time . The domestic researchers pay close attention to the research in certain respect of John Rawls’ just theory more, and ignore its dependence of just theory from other theory to study; Pay close attention to John Rawls’ conclusion more, and ignore its prerequisite ; Stand in certain position criticizing John Rawls more, and ignore John Rawls’ just theory and combine the position in many ways. Therefore, this kind ofJohn Rawls’ thought is studied, or emphasize the contract of " the veil of ignorance " and ignore the justice of " conscientious refusal " ; Or emphasize the justice of " conscientious refusal " and ignore the contract of " the veil of ignorance "; Or emphasize the social basic structure and ignore the principle of the individual freedom (right ) . And this text thinks , John Rawls’ just theory is not a steady frame, but the course of a gradual progress . Therefore, study after adopting John Rawls’ dependence of just theory and other theory, pay attention to the prerequisite of John Rawls’ just theory, emphasize the impact on John Rawls’ just theory from other theories " Conscientious refusal " is an expression with free conscience, which is inherent and free. " Conscientious refusal "is a personal independence choice. " the veil of ignorance " is a frame of a thought, however, John Rawls is a scholar who pays close attention to the realistic society, but not to make oneself estranged in the society. The contract of " the veil of ignorance ", developing to public reason in the realistic society, in this course, " conscientious refusal " forms criticism and introspection of " the veil of ignorance " correctly. from " conscientious refusal ", one realize the course from freedom and right to essential justice, it will realize the freedom and the stability at the same time , with the "conscientious refusal"as individual freedom. To get essential justice ,the priority of right have reflected a respect of John Rawls’ liberalism progress , namely it should be just as the law that is appraised. Contract thought of John Rawls is reflected in " the veil of ignorance " on the design of starting point, this design reflects his understanding of law (a constitution at first ). In the original state of the beginning, " the veil of ignorance " is the preparation which understands the law (a constitution at first ) as a kind of sumption . obtaining legal justice adopt way of doing things as the following, John Rawls adopt the opinion of knowledge and law , the former are relevant to obtain the just principle, solving the basic problem of the law, the latter are relevant to practise the just principle, finishing the practice of the law. Having gone through it from knowledge view to legal view , this is two routes of the gradual progress from " the veil of ignorance " to the public reason, and from " conscientious refusal "to essential of justice . " the veil of ignorance ", and " conscientious refusal " form their knowledge content of the views, public reason and essential justice form legal content of the view ." the veil of ignorance" form the contract on the knowledge view to preserve, it is not the law that people should observe , but a kind of thought that have just been represented . Public reason shows the basic common understanding expressed to politics, and expressed to the right under the political frame here, and expressed to essential justice. This kind of essential justice is freedom. Public reason overlaps common understanding, public reason has been moulded constantly. in the course of public rational development, the law as the entity is being revised constantly too. " The veil of ignorance " is the assumption of the contract, and a legal formulation , it is his assuming to rational people who make the independent judgement with the justice of " conscientious refusal ". So, it is a course with更多还原