哈特的描述性方法论之检省
发布时间：2018-08-27 20:40
【摘要】：哈特主张其法理学是描述性的，与规范性法理学分属于两种不同的事业，此即为描述性命题。但是，关于何谓“描述性”却是众说纷纭，至少存在三种不同的解读：法律社会学的实证性、标准语义学的描述性和自然科学的客观性。然而，由于没有数据予以支撑，或者因缺乏方法论上的抱负，或者因违背法律的人为属性，这些解读均无法得到辩护。本着最佳解释的原则，“描述性”可被解释为社会理解命题，即主张法理论的任务与性质仅仅在于价值中立地理解法律与社会，而不试图去证立某种政治道德价值。 理解法律需以诠释内在观点为基础，而对内在观点的诠释依赖于描述性诠释方法。试图在完全忽略实践观点的行为主义和完全参与实践的建构性诠释方法之间寻求平衡的描述性诠释面临着诸多困境：描述性诠释方法试图通过诠释实践陈述以理解人们的观点，但是实践陈述本身的复杂性，致使陈述与观点无法保证一一对应的关系；描述性诠释方法无从判断它所诠释的观点是事实上正确的观点；尝试通过诠释人们的观点来理解法律这一方法本身是可疑的。因此，，描述性诠释方法自身都摇摇欲坠，更是无法为社会理解命题的实现提供有力的支撑。 诠释内在观点是理解法律的前提，这是一个何种性质的判断呢？描述性命题将之定性为确立法理论逻辑起点的间接评价而非道德评价，即坚称内在观点具备某种重要性因而应作为法理论的逻辑起点。然而，间接评价并不具有恰当的展开方式：法律作为独特的社会组织形式，包含大量的粗糙的社会事实，间接评价无法从中撷取出重要的或本质性的具体特征；通过反映实践者的观点，并不能证明内在观点的极端重要性；企图借助直接评价问题来论证某个逻辑起点的重要性，将陷入直接评价与间接评价的循环论证当中；虽然法律的实践特性为人们所共享，但是这并不能赋予内在观点在法理论中的核心地位。 深究哈特的论证路径，内在观点实质上扮演着将指引功能内化为法律的本质功能的角色，从而使得诉诸内在观点与指引功能成为理解法律的必然途径。这种功能论证的背后，暗藏着哈特对于效率价值的偏爱，以及他所立足的形式法治观。这表明哈特并不是价值中立地描述法律，而是在其理论深处安置着道德论证：将合法性价值纳入法概念之中。正因为如此，他的法理论并非描述性的。
[Abstract]:Hart claims that his jurisprudence is descriptive and belongs to two different causes, namely, descriptive proposition. However, there are at least three different interpretations of what is "descriptive": the positivism of legal sociology, the descriptive nature of standard semantics and the objectivity of natural science. However, these interpretations cannot be justified because they are not supported by data, or because of a lack of methodological ambition, or because of the artificial nature of a violation of the law. According to the principle of best interpretation, "descriptive" can be interpreted as a proposition of social understanding, that is, the task and nature of the theory of assertive law is to understand law and society in a value-neutral manner, rather than trying to establish a certain political moral value. The understanding of law should be based on the interpretation of the internal viewpoint, and the interpretation of the internal point of view depends on the descriptive interpretation method. There are many difficulties in seeking a balance between behaviorism, which completely neglects the viewpoint of practice, and constructive annotation, which is fully involved in practice. The descriptive interpretation method tries to understand people's views by interpreting the statement of practice. However, the complexity of practice statement makes it impossible to guarantee one-to-one correspondence between statement and viewpoint, and descriptive interpretation method can not judge that the viewpoint it interprets is in fact correct. It is questionable to try to interpret the law by interpreting people's views. Therefore, descriptive interpretation methods themselves are teetering, and can not provide a strong support for the realization of social understanding proposition. What is the nature of judgment when interpreting an internal viewpoint is a prerequisite for understanding the law? The descriptive proposition characterizes it as the indirect evaluation of the logical starting point of the theory of law rather than the moral evaluation, that is, to insist that the internal viewpoint is of some importance and should be used as the logical starting point of the theory of law. However, indirect evaluation does not have a proper way of development: law as a unique form of social organization, including a large number of rough social facts, indirect evaluation can not extract important or essential specific characteristics; By reflecting the viewpoint of the practitioner, we can not prove the extreme importance of the internal viewpoint, and try to prove the importance of a logical starting point by the direct evaluation, which will fall into the circular argumentation of direct and indirect evaluation. Although the practical characteristics of law are shared by people, it does not give the inner viewpoint the core position in the theory of law. By studying Hart's path of argumentation, the intrinsic viewpoint plays the role of internalizing the function of guidance into the essential function of law, which makes it an inevitable way to understand the law by resorting to the internal viewpoint and the function of guidance. Behind this functional argument is Hart's preference for efficiency and his formal view of rule of law. This shows that Hart does not describe the law in a value-neutral way, but places moral argument in the depth of his theory: to incorporate the value of legality into the concept of law. It is for this reason that his theory of law is not descriptive.
【学位授予单位】：苏州大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D90
本文编号：2208394
[Abstract]:Hart claims that his jurisprudence is descriptive and belongs to two different causes, namely, descriptive proposition. However, there are at least three different interpretations of what is "descriptive": the positivism of legal sociology, the descriptive nature of standard semantics and the objectivity of natural science. However, these interpretations cannot be justified because they are not supported by data, or because of a lack of methodological ambition, or because of the artificial nature of a violation of the law. According to the principle of best interpretation, "descriptive" can be interpreted as a proposition of social understanding, that is, the task and nature of the theory of assertive law is to understand law and society in a value-neutral manner, rather than trying to establish a certain political moral value. The understanding of law should be based on the interpretation of the internal viewpoint, and the interpretation of the internal point of view depends on the descriptive interpretation method. There are many difficulties in seeking a balance between behaviorism, which completely neglects the viewpoint of practice, and constructive annotation, which is fully involved in practice. The descriptive interpretation method tries to understand people's views by interpreting the statement of practice. However, the complexity of practice statement makes it impossible to guarantee one-to-one correspondence between statement and viewpoint, and descriptive interpretation method can not judge that the viewpoint it interprets is in fact correct. It is questionable to try to interpret the law by interpreting people's views. Therefore, descriptive interpretation methods themselves are teetering, and can not provide a strong support for the realization of social understanding proposition. What is the nature of judgment when interpreting an internal viewpoint is a prerequisite for understanding the law? The descriptive proposition characterizes it as the indirect evaluation of the logical starting point of the theory of law rather than the moral evaluation, that is, to insist that the internal viewpoint is of some importance and should be used as the logical starting point of the theory of law. However, indirect evaluation does not have a proper way of development: law as a unique form of social organization, including a large number of rough social facts, indirect evaluation can not extract important or essential specific characteristics; By reflecting the viewpoint of the practitioner, we can not prove the extreme importance of the internal viewpoint, and try to prove the importance of a logical starting point by the direct evaluation, which will fall into the circular argumentation of direct and indirect evaluation. Although the practical characteristics of law are shared by people, it does not give the inner viewpoint the core position in the theory of law. By studying Hart's path of argumentation, the intrinsic viewpoint plays the role of internalizing the function of guidance into the essential function of law, which makes it an inevitable way to understand the law by resorting to the internal viewpoint and the function of guidance. Behind this functional argument is Hart's preference for efficiency and his formal view of rule of law. This shows that Hart does not describe the law in a value-neutral way, but places moral argument in the depth of his theory: to incorporate the value of legality into the concept of law. It is for this reason that his theory of law is not descriptive.
【学位授予单位】：苏州大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D90
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相关期刊论文 前3条
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3 雷磊;;原则理论与法概念争议[J];法制与社会发展;2012年02期
本文编号：2208394
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