开放法理学（引论）
Open jurisprudence (introduction)
石亚西
【关键词】jurisprudence, paradox, challenge
【全文】
Open jurisprudence (introduction)
The creation of theory is the outcome of the evolution of traditional culture to the social demands. According to this, our theories, which following the step of the western, would inevitably be facing the embarrassment: as to the western, they would seem specious for their author can not penetrate the western traditional culture; as to ourselves, they would seem mere theories for our theorists neglect our own traditional culture somewhat. At different levels, it is difficult for our all theories for our all theories to get out of this dilemma, esp. for legal science, of which the jurisprudence got it first.
Ⅰ. Jurisprudence among social sciences
As social sciences develop to today’s, their boundaries are dimmed, and the intersection seems unavoidable. Even today’s natural science, looks more like soft science.1 In the intersection, the legal science get great strokes from politics, economics, sociology, ethics, and linguistics, etc. The focus of the strokes is on jurisprudence, and the substance of them means a challenge. Where the challenge comes from? Where it is to go? Here we can only discuss several issues simply.
⒈ Between the tenses of history or reality and ideal
The ever theories of jurisprudence have gone along but two directions:⑴based on history or reality; ⑵towards an ideal or ideals. Every jurisprudent is placed between the two tenses, only the degree towards one or other different. The former pursuit nutriment more from the sciences, such as historical science, sociology, politics, and linguistics, etc.. The latter find their base more on religion or human nature (Lock’s natural state, Rousseau’s social contract, even Rawls’ veil of ignorance), presenting themselves as natural law study, new natural law study.
The divergence of the kinds of theories is that, how seriously they take the concepts such as fair, justice, right, and human right, etc. Opposite the theories based on history or reality, the theories towards a ideal or ideals cannot refuse having those concepts as their foundation. Since those concepts are all metaphysical, and the downfall of the Christianity and the authority of psychology over human nature make metaphysics itself flimsy, the theories towards an ideal or ideals seem also lack of cogence. Today, no one will believe in Lock’s natural state, and Rousseau’s social contract yet meet a lot of sever criticism.2 Even the justice as fairness, which is based on the veil of ignorance by Rawls, may become a building on the sand, as the veil of ignorance excludes prejudice.3
