自律の法と法の自律

カントによる近代法の「基礎づけ」

抄録

In European history of thought, natural law theory was originally an argument of independence and autonomy of human reason from religion and political power. Autonomy of reason means at the same time autonomy of law. But this autonomy and independence depended still upon the objective human nature that cannot be controlled by humans. Although modern natural law theory has advanced the autonomous character of law, it still permits a dependence on the transcendent to reason. For example, social contract is one of the typical concepts in modern natural law theory, and it has given the law a foundation that is grounded on an action of people themselves. But this concept of contract has in a sense a character of facts that are transcendent to human reason. In this course of natural law thoughts, the significance of Kantian thought consists in radicalisation of autonomy of reason and law. He idealised the concept of social contract and we can see here a progress in autonomy. Moreover Kantian “moral laws” (sittliche Gesetze) mean selflegislation by freedom of human, and its contents point out the coexistence of freedom of humans : It represents an idea of legal order. On the other side, his idea of law has its grounds in this moral law and it expresses the coexistence of human freedoms. By this self-referential grounding, Kant gave a foundation for modern law and made it more autonomous. This grounding by Kant influenced and has changed factually the way of writing among the modern natural law theorists. Kant’s self-referential grounding, however, does not mean that it brings the closed selfreferential System in N. Luhmann’s sense. It should be rather taken as a procedural autonomy in the meaning that actual autonomous process of critics among citizens realises the autonomy of reason.