| Summary: | 博士 === 東海大學 === 哲學系 === 104 === Abstract
The jurists think that positivistic jurisprudence, considering the effect of laws, is
self-contained and self-sufficient legal system. Positivistic rights regulate how each
individual behaves in accordance with what is done. Based on the actual experiences,
contemporary jurisprudence explores the effectively constrained laws. With the use of
scientific method, the jurisprudence has a growing trend in excluding each individual
free will from the legal region. If the laws, however, do not preserve any individual
free will but merely has him what to do, then how can the ideals of rights turn into
real ones like desegregation and the emancipation of slaves? Although the
jurisprudence emphasizes the empirical facts, it neither fully explains the concept of
the innate human rights like liberty and property nor makes such an abstract idea
become the real fact. These concepts of human rights are purely founded on the
postulates of non-empirical ideal. Since the natural law insists on the ideals of human
rights, it can provide the ground of positivistic jurisprudence. Accordingly, the classic
natural law ─ the doctrines of Hugo Grotius, Thomas Hobbes, John Locke,
Jean-Jacques Rousseau, and so on ─ explicates how the law can convey the ideals
of rights and be the norms either for the individuals, or for the individuals and
government. The essence of nature law can define what ought to be done related to
the moral region and can thus determine what the justice is. Consequently, moral
philosophy can be regarded as the determining ground of jurisprudence. Nevertheless,
the theories raised by the classic natural law scholars are also based on the
imaginations of the nature status and experiences. Therefore, enacting bills and
judging the legal cases are contingent because they always depend on the principles of
happiness. To solve the contingent problem, my dissertation proposes the positivistic
jurisprudence be the determined ground for Kant’s moral philosophy, one kind of
nature law.
Kant’s moral philosophy does not give the moral law originating from the
imaginations of nature status and experiences but from reason instead. As Kant
deduces jurisprudence from the science of rights, which is grounded on the
metaphysics of morals, the deduction of reason ensures the rules (laws) are universal
and necessary. Yet, Kant’s legal philosophy focuses on the pursuit of the universal and
the necessary, which derives from the mere ‘form’ of rules; it neglects the distinction
between individuals, failing to explain the potentiality of any individual utmost
perfection in terms of self-satisfied experiences and moral ends. The former
self-satisfied is about how the value of happiness is conferred on an individual; the
latter is concerning the value of moral ideals ─ i.e. merely the personality, lying in
time series, can confer himself values of happiness and moral ideals. To solve this
problem, we must also consider the efficacy of the freedom of positivistic rights,
which affects each individual’s empirical world in the daily life. Nevertheless, we do
not consider positivistic rights as the determining ground of moral laws, for they
merely ignite the consciousness of rights, by which we can reconsider revised
positivistic rights grounded on Kant’s moral law. Therefore, I give a “proposition of
ends” ─ insofar as people are the beings of experiences in nature, each individual
with a view to representing his freedom in community, seen as the civil personality,
acts relying on the moral laws for the ends that the human race will last forever and
that the positivistic rights of all citizens will progress gradually ─ to expound this
problem. For explicating this proposition, I adopt the approach of the circulative
discourse ─ ‘deduction’, ‘feedback’, and ‘import’ ─ corresponding with three
theorems ─ “theorem of determinant ground”, “theorem of reversibility”, and
“theorem of value-motivation” ─ to construct a dynamic science of rights, instead
of Kant’s static one of rights. This discursive method ensures the positivistic civil
rights, grounded on the Kant’s moral philosophy, can enact and revise constantly.
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