论哈特视野下的“内在观点”
发布时间：2018-09-06 08:00
【摘要】：“内在观点”是哈特的《法律的概念》一书中的核心概念之一,他之所以提出这一概念目的有三:第一,说明奥斯丁服从理论中主权者权威所不具有的连续性的缺陷,发现了规则不同于习惯的秘密——规则的内在方面;第二,欲使现代规则体系正常地存续和发展,人们尤其是官员必须对法律规则持内在观点;第三,反驳现实主义法学派的预测论,坚决捍卫法律实证主义。在梳理该书哈特对于“内在观点”的论述时,笔者发现,“内在观点”可以从三个层面来理解:第一个层面,“内在观点”被表述为规则的“内在面向”,只有规则具备了“内在面向”才被称为法律规则;第二个层面,可以将规则的内在面向理解为“有义务”,人们主动用规则进行自我约束,于是,承认这种面向并自觉适用规则的参与者所持有的观点称为“内在观点”;第三个层面,抱持此观点的人接受具有事实效力的承认规则的指导所做的陈述,被称之为“内在陈述”,而外在观点则是不接受规则的人所持有的观点。 中西方学者对“内在观点”皆有不同的解读方式,夏皮罗对哈特的“内在观点”进行了简单的修补,赋予内在观点持有者一种“实践者”的姿态;佩里则反对哈特以语义分析法来解释“内在观点”,他要跳出这种规范性束缚,要求对法律把有一种可真可假的信仰;麦考密克和拉兹认为哈特的“内在观点”和“外在观点”的界限模糊,又对其做进一步的划分,细化为“三分法”和“四分法”;瑞特卢泽讷超越了内在、外在观点,并试图消解“内在观点”和“外在观点”之间的界限;还有其他学者,如南希、温德尔指出“内在观点”的作用是为了服务自身文本;而国内学者多止步于介绍哈特的内在观点。 为了更深入理解哈特的内在观点,笔者对比了哈特和维特根斯坦的问题意识,发现了二者的共同之处:维特根斯坦用“语言游戏”将哲学从天上拉回社会生活,使哲学能够描述我们在日常生活中所遇到的语言现象,通过参与语言游戏体验到哲学的意蕴,通过描述语言游戏呈现其价值,无需解释和说明。哈特接受了维氏的这种思想,摒除了其他法学家给“法律”一词下一个标准的定义的做法,把法律规则视为一种“游戏”。在法律游戏中,哈特更强调让官员持有内在观点,以带动普通公民也持有此种观点,由此解决权威的连续性问题并赋予“内在观点”以法律话语权。进而,以该观点为基础建构属于法律人自身的语言表达,将这种话语权植入日常生活形式之中,通过“描述”法律现象增进人们的理解。然而,在权威性的证成问题上,哈特仍然无法用法律规则体系本身的逻辑结构来说明,不得不指向一个具有法律和事实两面的承认规则。尽管如此,哈特试图用“内在观点”解决法律问题的指引性,捍卫法律实证主义所做的努力值得我们肯定。
[Abstract]:"Inner View" is one of the core concepts in Hart's book "The Concept of Law". He put forward this concept for three purposes: first, to illustrate the defect of continuity that Austen obeys the authority of sovereign in theory, to discover the secret that rules are different from habits - the inner aspects of rules; second, to make modern rules. In order to survive and develop the system properly, people, especially officials, must hold an internal view of legal rules. Thirdly, people must refute the predictions of realist jurisprudence and firmly defend legal positivism. On the other hand, the internal view is expressed as the "internal orientation" of the rules, which is called legal rules only when the rules have the "internal orientation"; on the other hand, the internal orientation of the rules can be understood as "obligation" and people can voluntarily use the rules to self-restrain themselves, so the participants who face and consciously apply the rules should be recognized. On the third level, statements made by the holder under the guidance of a rule of recognition with factual validity are called "internal statements" while external views are held by those who do not accept the rule.
Scholars in China and the West have different interpretations of "intrinsic viewpoint". Shapiro makes a simple repair to Hart's "intrinsic viewpoint" and endows the holder of the intrinsic viewpoint with a "practitioner" attitude. Perry opposes Hart's interpretation of "intrinsic viewpoint" by means of semantic analysis. He wants to break away from the restriction of norms and demands law. There is a belief that can be true or false; McCormick and Raz think that Hart's "internal view" and "external view" are blurred and further divided into "three-part" and "four-part"; Ritterluzerne transcends the internal and external view and tries to dissolve "internal view" and "external view". There are other scholars, such as Nancy Wendell, who point out that the function of "inner view" is to serve one's own text, while domestic scholars mostly stop at introducing Hart's inner view.
In order to understand Hart's inner view more deeply, the author compares Hart's and Wittgenstein's problem consciousness and finds the similarities between them: Wittgenstein draws philosophy from heaven to social life with "language game", which enables philosophy to describe the language phenomena we encounter in our daily life, and participates in the language game form. Hatter accepted Victor's idea, rejected the standard definition of the word "law" given by other jurists, and regarded the rules of law as a "game." In legal games, Hart placed more emphasis on letting officials hold an inner view. Then, on the basis of this viewpoint, the language expression belonging to the legal person is constructed, and the right of speech is implanted into the form of daily life to promote people's rationality by describing the legal phenomena. Nevertheless, Hart is still unable to explain the authoritative justification by the logical structure of the legal rule system itself and has to point to a rule of recognition with both legal and factual sides. We are sure.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D909.1
本文编号：2225726
[Abstract]:"Inner View" is one of the core concepts in Hart's book "The Concept of Law". He put forward this concept for three purposes: first, to illustrate the defect of continuity that Austen obeys the authority of sovereign in theory, to discover the secret that rules are different from habits - the inner aspects of rules; second, to make modern rules. In order to survive and develop the system properly, people, especially officials, must hold an internal view of legal rules. Thirdly, people must refute the predictions of realist jurisprudence and firmly defend legal positivism. On the other hand, the internal view is expressed as the "internal orientation" of the rules, which is called legal rules only when the rules have the "internal orientation"; on the other hand, the internal orientation of the rules can be understood as "obligation" and people can voluntarily use the rules to self-restrain themselves, so the participants who face and consciously apply the rules should be recognized. On the third level, statements made by the holder under the guidance of a rule of recognition with factual validity are called "internal statements" while external views are held by those who do not accept the rule.
Scholars in China and the West have different interpretations of "intrinsic viewpoint". Shapiro makes a simple repair to Hart's "intrinsic viewpoint" and endows the holder of the intrinsic viewpoint with a "practitioner" attitude. Perry opposes Hart's interpretation of "intrinsic viewpoint" by means of semantic analysis. He wants to break away from the restriction of norms and demands law. There is a belief that can be true or false; McCormick and Raz think that Hart's "internal view" and "external view" are blurred and further divided into "three-part" and "four-part"; Ritterluzerne transcends the internal and external view and tries to dissolve "internal view" and "external view". There are other scholars, such as Nancy Wendell, who point out that the function of "inner view" is to serve one's own text, while domestic scholars mostly stop at introducing Hart's inner view.
In order to understand Hart's inner view more deeply, the author compares Hart's and Wittgenstein's problem consciousness and finds the similarities between them: Wittgenstein draws philosophy from heaven to social life with "language game", which enables philosophy to describe the language phenomena we encounter in our daily life, and participates in the language game form. Hatter accepted Victor's idea, rejected the standard definition of the word "law" given by other jurists, and regarded the rules of law as a "game." In legal games, Hart placed more emphasis on letting officials hold an inner view. Then, on the basis of this viewpoint, the language expression belonging to the legal person is constructed, and the right of speech is implanted into the form of daily life to promote people's rationality by describing the legal phenomena. Nevertheless, Hart is still unable to explain the authoritative justification by the logical structure of the legal rule system itself and has to point to a rule of recognition with both legal and factual sides. We are sure.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D909.1
【引证文献】
相关期刊论文 前1条
1 金珊;;论哈特法律规则“内在观点”的创新与局限[J];青春岁月;2013年05期
相关硕士学位论文 前1条
1 潘洪凯;哈特“内在观点”之探析[D];江西师范大学;2012年
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