| 摘要: | 作為長期立法參照對象的孟德斯鳩思想，究竟有何過人之處？ 本論文試著在形式上，以《法的精神》一書結構為經，以孔恩“典範＂理論為緯，而呈現出我們所認為的數項孟氏典範性特徵： 就研究對象言：其橫向上涉及“所有的＂國家，縱向上除政體外，還旁及各種文化、社會、自然等層次，這些都在在超越了當時其他的自然法學派學者。 就歷史研究法言，實證精神使他放棄當時流行的社會契約論，而更著力於現實的自然條件與社會環境；理性主義的信念使他跳出懷疑論歷史主義的陷阱；自由開放的精神則使他不致掉入決定論歷史主義的謎思。 就理論內涵言：當年所談到英國這三權分立的混合政體，其時已論及不同階層的參政變因、不同層次的混合制衡及動態協調等自由觀念，迄今仍未失其參照效力。至於全書所呈現時空大格局，儘管就中有些細節時過境遷而有所失，但其整體結構的考量，仍足為今日比較憲法乃至比較政治的“元＂典範。
As long term references to the legislative constitution, what has made Montesquieu theory discriminating？ Through the indepth examination from “Spirit of the law” and Kuhn’s theory of paradigm, distinctive qualities regarding Montesquieu‘s are shown as listed below： As a subject in our research, it is not only encompassing all the related countries, but also political institutions and other matters such as cultural, sociological, and natural perspectives. These all have the insurpassing qualities compared with those in the same realms. From its historical research perspective, the spirit of positivism has made Montesquieu declare the abandonment of the social contract theory which has then favored by the public general and has made him set more efforts on its current natural and socioeconomical settings. The belief of rationalism encouraged him to step aside from the myth of sceptical historism and the spirit of liberation has then prevented him from the stagnant determinist historism. From its theoretical content perspective, the once mentioned British the mixed state of the separation of powers has evidently covered the conceptions as the possibility of participatory democracy in various circumstances and the mixed balance in various levels and the dynamic coordination in various levels. It has still shown its strong impact nowadays. As the consideration in its time and space encompassed in the book, there are indeed some time in-adequacies when referring to our current situations. Yet it is perfectly served, when in total structural consideration, as the metaparadigm for today’s Comparative Constitution and Comparative Political science. |
