Modern Western European Concept Of Legal Rights And Evolution Theory

It is sure that we can find civilized polity only in the place where politics is involved in legal system. However, the involvement is actually ever changing; no fixed model of them can be discovered. As the son of western civilization, Max Weber made a deep insight into the uniqueness of Western legal rationalism: Only in the West, "State" and reasonable "Constitution" and reasonable "rules" which are regarded as essential factors are combined in a unified body. Therefore, each of the inevitable political changes is accompanied by the derivation and changes of "recht". In the first half of the 16th century, a permanent internal split occurred in western Christian world; at the 18th century's end and the beginning of the 19th century West civilization erupted fission, and Christianity's unified world has yielded thoroughly the nation-state and nationalism.This article will precisely discuss the transformation of the idea of "recht" and the order of "recht" which were caused by the modern Western Europe internal political change.s Medieval feudal order had been placed by Christian terminology in a series of grades of legal right, and been still shrouded in scenes of the sacred until the beginning of modern history, but the growth of monarch powers and the shock of Reformation opened the veil of changes in the order of "recht". Reason rose up and seized the power of discourse gradually, trying to establish a reasonable structure of political and legal order through the criticism and attack of theocracy, however, the shadow of ancient sacred legitimacy was always lingering.The full dissertatioon is made of seven parts: five main chapters, introduction and conclusion.The introduction first briefly reviews Western Europe's universal order of "recht" in middle ages: As independent political units, the city, the manor, the church parish, the ligeance and so on were set in a rank order, the relations between each rank were established in legal form, empire represented the highest rank, and simultaneously played an arbitrator's role, was the arbitrator of political units subordinated to the emperor. All of these ranks were placed in natural order created by God, thus, the Christianity religious doctrine had provided the final validity for the universal legal orders; then the symbiotic of the political evolution and the legal transformation will be discussed. Western jurisprudence resided in the Church during the middle Ages, after entering into modern era, resorted to the state. "State" instead of "empire" became the basic concept of modem law, and new order of "recht" was bound to make legitimate argumentation for the nation; finally, the background and sketches of this article is explained. It will trace and analyze intrinsic evolution of the idea of legal order in the background of concrete politics--especially the geopolitics, inspects how the different nation-states split up from universal Christianly world and obtain their independence, inspecting differences of respective national path, the fit or unfit quality and the success or failure in this process.The first chapter is divided into three sections. The first section outlines background of the Reformation, elaborates emphatically the Christianity natural law idea and the grading legal order of Roman Catholicism. Christianity (Catholic Church) hold the valid right to interpret legitimacy and requested the people to obey the political authority through that, simultaneously may revolt against and disintegrate political power with the spiritual name; As a result of flexibility of the teachings and power sensitivity, Christianity gradually evolved from purely religious groups to a powerful authority, the Catholic Church became a part of and so was legitimacy source of the feudal order of "recht".The second section explains the impact of Lutheran Reformation on the Catholic hierarchy. This German theologian made a complete cancellation of catholic church from the secular system through the teaching of "sola gratia", the Church could not qualify as a legal unit, so could not seek secular interests, for the soul's salvation was dependent on the inner belief without the help of external church; Protestantism simultaneously initiated to question the legitimacy of old legal order, and the Lutheran criticism of the Catholic Church led to a significant change in the order.The third section discusses Bodin's theory of "sovereignty". Complying with the expand of monarch's strength, Bodin originated the concept of "sovereignty", his sovereignty was higher than the law, and could create and abolish the legal order; Bodin thought that only monarch had appropriation of sovereignty, this sovereign power of monarch was above law and order, but there were some constraints on sovereignty, namely legitimacy of the request. Bodin thought that the validity of sovereignty originated from God, thus monarch needed to obey God, and sovereignty should also subordinate to the fundamental purpose of polity, which were the blend of Christian ethic and classical virtues.The second chapter makes an Analysis of the legal order of Hobbes's "Leviathan". The Reformation triggered a religious war, and Bodin's idea of legitimacy was mixed without certain conclusion, the struggle of concept became a cause of war. Hobbes pondered thoroughly to the conflict and war, and launched in two aspects about the thought of "recht": on the one hand, he criticized vigorously some controversial religious doctrines and ideas of good that was labeled dark kingdom, only left the teaching of "Jesus is Christ" which could be acknowledged commonly, at the same time absorbed Bodin's concept of "sovereignty", constructed a mortal God in the world—Leviathan; On the other hand, in order to make this mortal God to lay in a stable foundation, Hobbes constructed natural rights theory. He still took sovereign state-Leviathan as an element of legal order, but its legitimacy had been significantly different: Christian ethic and classical virtues were substituted by natural rights. From the critique of dark kingdom to the world God, to natural rights, Hobbes's thought clearly highlighted the rational process of the evolution of legal order.The third chapter which has two sections inquires into national legal order development after Hobbes. The first section describes the legal order of "absolutism": Hobbes's theory of natural rights reflected the trend of development of modern science. Once admonished from the shackles of sacred, state quickly submerged in the pursuit of material interests, in the desire of secular happiness. Reason became a tool of power; at the same time, the power of monarchy expanded rapidly, broke through from the old rank pf order, monopolized absolute authority, suppressed aristocrat rank, and collaborated with huge commercial strength. Therefore, rational absolutism and absolute monarchy echoed mutually, a rational political order of universal principle was established which was displayed obviously in the authoritarian rule of Louis XTV. However, voices of question and opposition sounded constantly soon. The second section discusses Rousseau's criticism of this order and his development. As the prophet of modern society, he severely criticized moral degeneration that resulted from pursuit of material interests in the name of Virtue. He took over the "social contract" theory, reset "natural state" which he took as a standard to weigh and construct new political and legal order. Through generalization of individual will, namely the mechanism of "general will", he ultimately established "the people sovereignty". Rousseau made an extremely essential change of modern order of "recht", the legitimacy henceforth no longer resorted to God, but came from the people, and this was a mark that conversion from monarchy democracy was inevitable.The fourth and fifth chapters discover Kant's rational order of "recht". What Rousseau's critique depended was his keen sensation, Kant had given the order true scientific examination, and the universal legal order was defined more perspicuously and understood more deeply. In Kant, the order of "recht" was a legal kingdom constructed after the critique of pure reason, therefore the foundation of Kant's legal order it should first be discussed that is the main task of Chapter IV. In order to avoid the conflict of various notions and prejudices, Kant tried to make a rational court to judge all things in Critique of Pure Reason, which was rational rules and regulations and established legal order of notions. The foundation of this order was Kant's "Enlightenment" which means that Reason monopolized authority of legislation. As a cosmopolite, philosopher expected to guide the populace to move toward the universal rational kingdom gradually. The fifth chapter displays Kant's rational order of "recht". Universal rational condition was the "principle" state that was established by practical reason, which was the form of moral precepts, also was the form of legal rule. "Principle" and rule of individual behavior always contradicted, but mutual restriction between individual behaviors had guaranteed realization of "principle" state, which was the reconciliation between the individualism and political public Kant made. Because this kind of universal "principle" state surpassed individual behavior, and Kant was unable to believe firmly that this state would definitely become reality, he had to resort to "Providence" to guarantee that realization. After thoroughly criticizing on the concept of "God" in Critique of Pure Reason, and introducing "Providence" in the human history to the legal kingdom, At least in the field of concept Kant completely abolished the unification of the Christian world order, and made spaces where national state could find "spirit of volk" in its history.Conclusion explains the change of idea of "recht" from cosmopolitism to nationalism. Kant's legal order of "perpetual peace" was stimulated by French Revolution and envisaged under the influence of universalism of Enlightenment, but Burke had begun fiercely opposed such a political, legal reason. On basis of the constitution of England and its' historic tradition, He argued firmly against taking the abstract rule as the standard of social and political reformation. Time was a wise old person, and tradition had its noticeable superiority, so the reform of legal order must be prudent, and rational theory could not be a substitute for political wisdom. Young Hegel also opposed abstract rationalism. He tried to absorb the classical virtues, and melted them into modern rationalism, then injected this blended spirit into German national body. At Jena, Hegel wrote "On the Scientific Ways of Treating Natural Law ", "The German Constitution" and "the system of ethical life", expecting to construct an unified political body of German nation, propose the concept of "absolute ethic" which was the substantive ethics of the whole nation, and induct these ethics meaning into all kinds of legal systems of private right and constitution. In the past three centuries of evolution, the order of "recht" transformed from a unified world to division, from grading system to various national bodies, from empire to monarchy and to democracy, from the Christian God to "Providence" in the history, all these changes was a journey of disenchantment.