摘要
在20世纪所发生的哈特与富勒之间的一场论战中,哈特为实证主义的分离主张辩护,并将“分离说”的内涵作了更为具体的表述,而富勒则从法律秩序的道德基础和法律自身的道德性出发强调法律与道德的不可分。从表面上看,其论争的焦点在于法律与道德是分离还是结合,而实质上他们是从各自的问题意识出发,强调了对于实现“忠于法律”这一法治目标来说至关重要的不同的方面。这场论战对于我国法治建设的最大启示是:当我们强调法律的实质正义目标时,我们不应简单地用道德的逻辑和标准去替代法律的逻辑及标准;而当我们强调法律相对于道德、正义的独立性时,我们不应忽视对法律自身道德性的培育。
In the last century there occurred a famous debate between H. L.A. Hart and Lon L. Fuller over the relationship of law and morality, which has been seen as the historic confrontation between legal positivists and natural law thinkers. As the debate ended, it is usually delineated that the legal positivists insist on the separation of law and morality and the natural law thinkers insist on the un separation of law and morality, This is ahnost the settled conclusion about the debate. Such a blanket conclusion, however, should have concealed the debaters＇ deep awareness of jurisprudent problems and its profound significance in legal practice.
In the debate, Hart definitely defended the legal positivism against criticisms which appeared at his time and reiterated a strict separation of law and morality. The separation thesis which is typically formulated in terms of ＂the separation of law as it is and law as it ought to be＂, according to Hart＇s explication, means two simple things： first, in the absence of an expressed constitutional or legal provision, it could not follow from the mere fact that a rule violated standards of morality that it was not a rule; second, it could not follow from the mere fact that a rule was morally desirable that it was a rule of law. Here actually exist two kinds of ＂morality＂ - one refers to ＂all notions of ＇what law ought to be＇ ＂ in the conceptually general sense and the other refers to ＂extra legal notions of＇ what law ought to bet ＂ in the practically applied sense. Correspondingly, there also exist two kinds of ＂separation＂ . one means the exclusion of all values, including internal legal value, from law as facts and the other only means the exclusion of extra- legal value from law. Usually Hart and his predecessor held the separation thesis in the second meaning in order to define the range of law accurately and make fidelity to law possible. But sometimes they, especially Hart, tended to extend the separation-proposition to the more general leve
出处
《浙江大学学报（人文社会科学版）》
CSSCI
2007年第1期144-152,共9页
Journal of Zhejiang University:Humanities and Social Sciences
基金
国家社会科学基金资助项目(413203101S10401)
关键词
法治
法律的道德性
哈富论战
自然法学
实证主义
rule of law
the morality of law
Hart-Fuller debate
natural law theory
positivism
