|Abstract: ||自G. E. M. Anscombe省思康德道德義務論與道德效益論對倫理學的影響，試圖檢視古希臘倫理學對當代哲學的啟發，此倫理學理上之翻轉，亦推動法理學思考法律與道德在義務論與效益論之外的其他可能性。Lawrence B. Solum教授以德行法理學標示溯源自古希臘哲學，以人為本的理論基礎。德行法理學嘗試藉由對古希臘哲學的梳理，提煉人、法律、道德間的相互關係。在國外對德行法理學的研究仍處於初始的階段，文獻或為對裁判者德行的探討，或為對憲法理論、國家公權力介入行為的論述，以公法為重。|
Since G. E. M. Anscombe thought about how the moral deontological theory of Immanuel Kant and the moral utilitarianism have influenced Ethics, trying to find the possibility of ancient Greek philosophy to inspire contemporary philosophy. It is the overturn of Ethic theory, and is also the promotion for jurisprudence to think the other possibility except deontological theory and utilitarianism. Professor Lawrence B. Solum labeled virtue jurisprudence which was tracing back to ancient Greek philosophy, and was basing on human. The study of virtue jurisprudence was trying to find the interrelation between human, law and virtue by arranging ancient Greek philosophy. In foreign, the study of virtue jurisprudence still in preliminary, the papers might study about the virtue of judicator, and might reaserch the constitutional theory, national power, focusing on public law.
I think there are three challenges in virtue jurisprudence: the first one is the criticism about deontological theory and utilitarianism; the second one is about structuring the theory of virtue jurisprudence, even though tracing back to ancient Greek philosophy, which in thousand years apart how to fit contemporary? Virtue jurisprudence was built on ancient Greek philosophy, and what is the difference between them? Thirdly, when virtue jurisprudence practice in judiciary, how it interpret morality in law. The theory of virtue jurisprudence still need to be built, and the three questions would be deliberated in my thesis.
In Taiwan, the study of jurisprudence focuses on the theories and debates between Ronald Dworkin and H. L. A. Hart, virtue jurisprudence is still a new area. Virtue jurisprudence begins with critique of the original theories, hence, I will examine the limitation of Kant’s deontological theory and utilitarianism in my thesis at first, and will lead to the deliberation of law, justice and so on in ancient Greek philosophy; moreover, I will discuss the relation between law and moral. By expounding principles and rules of Ronald Dworkin and H. L. A. Hart, they will have a conversation with virtue jurisprudence.
Furthermore, I think the word “virtue” in virtue jurisprudence comes from the practice of life, the social consensus built the core value of law. In Taiwan Civil Law §148II is that performing right and duty should base on honesty and credit methods, “honesty and credit” or “good faith principle” is the emperor clause in civil law, the double characteristic of moral and law in it. My thesis focuses on purchasing contract, honesty and credit will be the virtue in transaction. The content of good faith is continuing supplement, annotation, and recreation in the interaction between contract parties and in the judicial judgement. In normal commercial contract, the court interposes the parties’ transaction passive state; however, in standard form contract, the contract terms were draw up by one party in advance, both sides might in inequality, basing on fair and good faith, the legislator made Consumer protection law to rule it, and the court interpreted good faith might be different.