【作者】 杨策；

【导师】 姚建宗；

【作者基本信息】 吉林大学 ， 法学理论， 2005， 硕士

【摘要】 自然权利理论的发展有着一条漫长而又曲折的道路,其发展的每一阶段都是一个和相关学说交汇融合的过程,而经历这些交汇融合之后自然权利理论都会在某种程度上呈现出一种新的姿态。为了从内在的层面把握自然权利理论的渊源由来和各个时期所呈现出来的不同面貌,本文从施特劳斯的政治哲学理论入手,从政治哲学的角度对自然法中的自然权利理论作一番审视,意图展现隐匿于自然权利理论背后的深层次的思维逻辑演变的前后关系,同时,通过历时性的有选择的考察,使我们既能从微观上又能从宏观上看清自然权利的发展脉络,并得出这样的结论:古典自然权利论与现代自然权利论有着不同的理论和现实基础,现代自然权利论并没有继续传承古典自然权利论的核心思想,而是在其初期就背离了古典传统,从而开启了自然权利理论的现代之路。更多还原

【Abstract】 The natural right theory is a key category of political philosophy and legal science. A kind of theory has its own process of formation, development and change, and because of the status and function of natural right theory in the philosophy and even political philosophy, its process of formation, development and change is more complicated. On the basis of the political philosophy theory of Leo Strauss, together with his research results in the political philosophy, the thesis will go deep into the legal science proposition of natural law with a visual angle of political philosophy, grasp the process of the natural right theory, illuminate the changes in the skeleton of idea in natural right theory, and endeavor to make a rational explanation for the process of natural right theory at the aspect of deduction of thinking logic. The thesis can be divided into three chapters. The first one of which describes the origin of the natural right idea. The natural right idea does not appear without foundation. Because the idea of "nature" is unknown as well as the natural right idea, the idea of “nature" is a prerequisite to the natural right idea. Consequently, in this chapter, I firstly discuss the presentation of the idea of "nature", namely the differentiation of "nature" and "custom". In the pre-philosophy period, “habit”or “manner”was in correspondence with the idea of “nature”, and the character of the life in this period was that “good”was simply equal to “ancestral”, namely the validity of “habit”or “manner”was ensured by antiquity. However, it was gradually discovered that some things as “good”in nature and “bad”handed down from ancestors were in existence. Accordingly, “nature" and "custom" could be distinguished on the basis of resistance to the authority. The “habit" of the natural things is considered as their nature, but it was considered as their custom in different human tribes. The original concept of “habit”or “manner”was divided into the concept of “nature”and “custom”. Secondly, on the basis of certain human possibility which was confirmed by the discovery of “nature”, the natural right idea was put forward. In order to make the outline of the natural right clearer, I discuss simply the relations among “natural right idea", “conventionalism" and “classical hedonism" here. In chapter two, the thesis has mainly described the classical natural right theory. First of all, it begins with Strauss’ so-called "Socrates’ political philosophy conversion". In the eye of Strauss, Socrates is the founder of classical political philosophy, so the elementary proposition of natural right theory as a key category of political philosophy that is a source of classical natural right theory must be established in this period. Socrates’ political philosophy conversion means that the philosophers may seek the truth of “nature”or “natural right”on the basis of the political life, and the political philosophy should keep a close and tense relationship with the political life. Secondly, based on the relation between the political philosophy and the political life, it is necessary to discuss the proposition of classical natural right in the context of the political life. Firstly, it has discussed the classical theory of human nature, namely the relation between human nature and good which includes the natural order of human nature, the sociality of human nature, the relation between human nature and reason and the relation between human nature and political life. Secondly, it has discussed the classical politics,namely how the classical political philosophers thinks about the temporal social system. It will be founded that the best system what the classical political philosophers have understood is exactly in accordance with the classical theory of human nature and the best system doesn’t exist in the deeds but words in nature, so the best system is a "Utopia". Thirdly, it has explained three kinds of classical natural right theories. First of all, the natural right theory of Socrates-Plato is desired to weaken the natural right theory to a certain extent in consideration of the political or moral affairs and it is characteristic of a certain well-meaning hesitation and obscurity. Secondly, Aristotle’s natural right theory eliminates the tense relationship with the political life and claims that the natural right is in harmony with the request of political society. Furthermore, all natural rights can be changeful because there is a generally effective hierarchy concerning the purposes not a rule of activity. Thirdly, Thomas’ natural right theory which has remedied the deficiency in the classical theory of human nature on the sacred authority of God has no doubt on the ultimate harmony between the natural right and citizen society and the eternal proposition in natural law. In the third chapter, the thesis has described the modern natural right theory. First of all, it has described the natural right idea of Machiavelli. Based on the new understanding and explanation to the human nature, Machiavelli changes the classical political philosophy and theology. He replaces the human natural purposes with a kind of natural fact at the human initial stages. The request for human natural right comes into being when the progress in human is a purely instinctive response to the environment around not a process of purpose. Secondly, this thesis has described the Hobbes’ natural更多还原