哈特：一个站在局内的局外人
发布时间：2019-04-01 19:38
【摘要】：实证主义法学派自诞生之日起,便一直致力于回答“法律是什么”这个令人无比神往又使人颇为费解的问题。自边沁创立功利主义法理学学说以来,实证主义法学家们便沿着边沁的足迹坚定地将经验主义作为他们研究法理学问题的哲学基础。奥斯丁通过梳理主权者、法律命令、惩罚等一系列概念,提出了“法律是主权者的命令”这一重要命题。然而,这一命题在哈特看来存在着种种缺陷,它不可能很好的解释某些特定法律的产生以及运行。作为实证主义法学派在二十世纪的代表人物,哈特在其《法律的概念》一书中创立了“法律规则”学说。通过区分“第一性规则”与“第二性规则”、“内在观点”与“外在观点”以及法律的“清晰地带”与“模糊地带”这三组概念,哈特自信能够提出一种“描述的社会学”式的法理学理论用以回应其它法理学学派(尤其是自然法学派)对实证主义法学派的批评。 如同自己的前辈们一样,哈特也坚守着一脉相承的经验主义哲学传统。然而,这并非是哈特唯一的灵感源泉与理论支撑。通过分析和研究哈特所提出的“内在观点”与“模糊地带”等概念,我们不难发现在哈特的法理学径路的土壤中明显的充满着语言哲学的元素,而中后期维特根斯坦的日常语言哲学理论更是对哈特的思想产生了莫大的影响。像哲学史上那些卓越拔群的理论一样,维特根斯坦的日常语言哲学理论同样面对着诸多误解与歪曲。哈特很好的把握住了维特根斯坦语言哲学中的“现象学”成分,并成功的将其应用到自己的法理学理论中,并自信以此能够克服法律实证主义的某种“客观性之难”。然而,正如罗纳德·德沃金所指出的一样,哈特的学说留下了一扇“凯卡波尔塔”之门——正是由于这扇小门的敞开,使得个人权利在哈特的学说中实际上也处于一种危险的境遇之中。 本文试图指出的是:这扇“凯卡波尔塔”之门的开启,是与哈特对维特根斯坦的误读息息相关的。在某种程度上,哈特既沿袭了维特根斯坦又反对了维特根斯坦。本文的理论意义主要在于:通过将哈特乃至其前辈学者的理论与维特根斯坦的思想进行对比,还原自哈特以来的法律实证主义学说的维特根斯坦背景,并最终指出,哈特与维特根斯坦思想之合离的更深层次的法理学以及哲学原因。这一研究对于我们正确理解哈特之学说有着重大的理论意义。
[Abstract]:Since its birth, positivism has been trying to answer the fascinating and puzzling question of what the law is. Since Bentham founded utilitarian jurisprudence, positivism jurists have firmly taken empiricism as the philosophical basis for their study of jurisprudence along Bentham's footsteps. Austen put forward the important proposition that the law is the order of the sovereign by combing a series of concepts such as authority, legal order, punishment and so on. However, in Hart's view, this proposition has various defects, and it is impossible to explain well the emergence and operation of certain laws. As a representative of positivism law school in the 20th century, Hart founded the theory of legal rules in his book the concept of Law. By distinguishing between "first rule" and "second rule", "internal view" and "external viewpoint" and "clear zone" and "fuzzy zone" of the law, Hart is confident that he can propose a "descriptive sociology" of jurisprudence to respond to criticism of positivism by other schools of jurisprudence, especially the school of natural law. Like his predecessors, Hart clung to the same tradition of empiricism. However, this is not the only source of inspiration and theoretical support for Hart. By analyzing and studying the concepts of "internal view" and "fuzzy zone" proposed by Hart, it is not difficult to find that there are obvious elements of language philosophy in the soil of Hart's path of jurisprudence. Wittgenstein's philosophy of daily language in the middle and late period had a great influence on Hart's thought. Like the outstanding theories in the history of philosophy, Wittgenstein's philosophy of daily language faces many misunderstandings and distortions. Hart grasped the phenomenological elements of Wittgenstein's linguistic philosophy and successfully applied it to his own jurisprudence theory, and was confident that he could overcome some of the difficulties of objectivity in legal positivism. However, as Ronald Dwarkin pointed out, Hart's doctrine left behind a door of "Kecca Polta"-precisely because of the opening of the small door. Personal rights are in fact in a dangerous situation in Hart's theory. This paper attempts to point out that the opening of the door of Kecca Polta is closely related to Hart's misreading of Wittgenstein. To some extent, Hart followed Wittgenstein and opposed Wittgenstein. The theoretical significance of this paper is as follows: by comparing the theories of Hart and his predecessors with Wittgenstein's ideas, this paper restores the background of Wittgenstein's theory of legal positivism since Hart, and finally points out that: The combination of Hart and Wittgenstein's thoughts has a deeper level of jurisprudence and philosophical reasons. This study is of great theoretical significance for us to understand Hart's theory correctly.
【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】：D90
本文编号：2451837
[Abstract]:Since its birth, positivism has been trying to answer the fascinating and puzzling question of what the law is. Since Bentham founded utilitarian jurisprudence, positivism jurists have firmly taken empiricism as the philosophical basis for their study of jurisprudence along Bentham's footsteps. Austen put forward the important proposition that the law is the order of the sovereign by combing a series of concepts such as authority, legal order, punishment and so on. However, in Hart's view, this proposition has various defects, and it is impossible to explain well the emergence and operation of certain laws. As a representative of positivism law school in the 20th century, Hart founded the theory of legal rules in his book the concept of Law. By distinguishing between "first rule" and "second rule", "internal view" and "external viewpoint" and "clear zone" and "fuzzy zone" of the law, Hart is confident that he can propose a "descriptive sociology" of jurisprudence to respond to criticism of positivism by other schools of jurisprudence, especially the school of natural law. Like his predecessors, Hart clung to the same tradition of empiricism. However, this is not the only source of inspiration and theoretical support for Hart. By analyzing and studying the concepts of "internal view" and "fuzzy zone" proposed by Hart, it is not difficult to find that there are obvious elements of language philosophy in the soil of Hart's path of jurisprudence. Wittgenstein's philosophy of daily language in the middle and late period had a great influence on Hart's thought. Like the outstanding theories in the history of philosophy, Wittgenstein's philosophy of daily language faces many misunderstandings and distortions. Hart grasped the phenomenological elements of Wittgenstein's linguistic philosophy and successfully applied it to his own jurisprudence theory, and was confident that he could overcome some of the difficulties of objectivity in legal positivism. However, as Ronald Dwarkin pointed out, Hart's doctrine left behind a door of "Kecca Polta"-precisely because of the opening of the small door. Personal rights are in fact in a dangerous situation in Hart's theory. This paper attempts to point out that the opening of the door of Kecca Polta is closely related to Hart's misreading of Wittgenstein. To some extent, Hart followed Wittgenstein and opposed Wittgenstein. The theoretical significance of this paper is as follows: by comparing the theories of Hart and his predecessors with Wittgenstein's ideas, this paper restores the background of Wittgenstein's theory of legal positivism since Hart, and finally points out that: The combination of Hart and Wittgenstein's thoughts has a deeper level of jurisprudence and philosophical reasons. This study is of great theoretical significance for us to understand Hart's theory correctly.
【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】：D90
【参考文献】
相关期刊论文 前2条
1 陈锐;论法律实证主义[J];河南师范大学学报(哲学社会科学版);2005年01期
2 H.L.A.哈特,翟小波,强世功;实证主义和法律与道德的分离(上)[J];环球法津评论;2001年02期
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