论富勒法律内在道德观的确立及价值
发布时间：2019-07-03 19:05
【摘要】： 上个世纪中叶,美国法学家富勒与英国法学家哈特之间针对“法律与道德是分离还是结合”展开了激烈的论战。在这场论战中,富勒创新性的提出了法律的内在道德理论,它包括八项原则,分别是:一般性原则、公开性原则、非溯及既往性原则、明确性原则、一致性原则、可行性原则、稳定性原则、官方行为与法律一致性原则,富勒称其为程序自然法,将其归属于愿望的道德范畴。该理论不仅在西方法学界产生了巨大的影响,更对现今中国的法治建设有着重要的启示作用。 本文的研究对象是富勒的法律内在道德理论的确立及价值,以富勒的《法律的道德性》为研究文本,从富勒与哈特的论战出发,通过对法律与道德关系的争论试图说明富勒的法律内在道德确立的脉络。 在具体的研究方法上,本文主要采用文献分析法、历史考察分析法与比较分析法。通过对文本的解读来理解富勒法律内在道德的性质,同时根据富勒对法律概念的界定,最终对富勒的法律内在道德理论进行定位。 全文共分为四个部分。 第一部分主要叙述了富勒法律内在道德提出的背景。首先,本部分以“告密者案件”引发的争论为切入点,探讨“恶法亦法”还是“恶法非法”,最终法院对这个案件的判决以及德国法学家拉德布鲁赫从法律实证主义向自然法的转变,使这个争论趋于白热化。接着,从法律实证主义的“分离论”出发,分析了他们坚持“分离论”的背景,富勒通过对他们的批判,得出法律与道德不可分离的结论。 第二部分主要论述了法律内在道德是怎么得到最终的确立的。这里主要以《法律的道德性》为研究文本。本部分先从富勒对愿望的道德与义务的道德的区分着手,通过富勒在道德尺度、伦理学语汇的角度、边际效用的角度方面对这两种道德的区分进行的详细的阐述,得出富勒对这两种道德区分的根本意图在于以此为根据提出法律的内在道德。接下来,对雷克斯造法失败的教训中富勒总结出八项原则进行分别考察,最后,对法律的内在道德进行理论的分析,得出法律内在道德是程序自然法,是一种愿望的道德,它蕴含着对人的理解,这些对法律内在道德的定位,表明了法律内在道德的最终确立。 第三部分主要阐述了法律内在道德的价值。富勒通过对反对者的批评论证,通过对法律内在道德的界定,得出法律是一项有目的的事业这个结论,这也是法律内在道德的最终归宿与价值。接下来,分别从立法、执法、司法三个角度出发,结合富勒所提出的程序自然法理论对我国的法治建设的指导价值进行了阐述。 最后是结语部分,通过对富勒法律内在道德理论性质的简要的阐述,再次说明富勒理论的价值,并且对它给中国法治的启示作用再次做了肯定。
[Abstract]:In the middle of last century, there was a fierce debate between American jurist Fuller and British jurist Hart about whether law and morality are separated or combined. In this debate, Fuller innovatively put forward the inherent moral theory of law, which includes eight principles: general principle, openness principle, non-retroactive principle, clarity principle, consistency principle, feasibility principle, stability principle, official behavior and legal consistency principle. Fuller calls it procedural natural law and belongs to the moral category of desire. This theory not only has a great influence in the western legal circles, but also plays an important role in enlightening the construction of the rule of law in China. The object of this paper is the establishment and value of Fuller's inner moral theory of law. Taking Fuller's morality of Law as the research text, starting from the debate between Fuller and Hart, this paper tries to explain the context of Fuller's internal moral establishment of law through the debate on the relationship between law and morality. In the specific research methods, this paper mainly uses literature analysis, historical investigation analysis and comparative analysis. Through the interpretation of the text to understand the nature of Fuller's legal inherent morality, and according to Fuller's definition of the legal concept, Fuller's legal internal moral theory is finally positioned. The full text is divided into four parts. The first part mainly describes the background of Fuller's inherent morality. First of all, this part takes the debate caused by the "whistleblower case" as the starting point, discusses whether the "draconian law is also the law" or "the draconian law illegal". Finally, the court judgment on this case and the transformation of German jurist Ladbroch from legal positivism to natural law make this debate tend to heat up. Then, starting from the "separation theory" of legal positivism, this paper analyzes the background of their adherence to the "separation theory", and Fuller draws the conclusion that the law and morality are inseparable through his criticism of them. The second part mainly discusses how the inherent morality of law is finally established. Here mainly takes the morality of the law as the research text. This part begins with Fuller's distinction between the morality of desire and the morality of obligation, and through Fuller's detailed exposition of the distinction between the two kinds of morality from the angle of moral yardstick, ethical vocabulary and marginal utility, it is concluded that Fuller's fundamental intention to distinguish the two kinds of morality lies in putting forward the inherent morality of law on this basis. Next, Fuller summed up eight principles in the lessons of Rex's failure to make law. Finally, he analyzed the internal morality of law theoretically and concluded that the inner morality of law is procedural natural law and a kind of desired morality, which contains the understanding of human beings. These positions of internal morality of law show the final establishment of internal morality of law. The third part mainly expounds the value of the inherent morality of the law. Fuller draws the conclusion that the law is a purposeful cause through the criticism and argumentation of the opponents and the definition of the inherent morality of the law, which is also the final destination and value of the inherent morality of the law. Then, from the three angles of legislation, law enforcement and judicature, combined with Fuller's theory of procedural natural law, this paper expounds the guiding value of the construction of the rule of law in our country. Finally, the conclusion part, through a brief exposition of the inherent moral theory of Fuller law, once again explains the value of Fuller theory, and reconfirms its enlightening effect on the rule of law in China.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D909.1
本文编号：2509603
[Abstract]:In the middle of last century, there was a fierce debate between American jurist Fuller and British jurist Hart about whether law and morality are separated or combined. In this debate, Fuller innovatively put forward the inherent moral theory of law, which includes eight principles: general principle, openness principle, non-retroactive principle, clarity principle, consistency principle, feasibility principle, stability principle, official behavior and legal consistency principle. Fuller calls it procedural natural law and belongs to the moral category of desire. This theory not only has a great influence in the western legal circles, but also plays an important role in enlightening the construction of the rule of law in China. The object of this paper is the establishment and value of Fuller's inner moral theory of law. Taking Fuller's morality of Law as the research text, starting from the debate between Fuller and Hart, this paper tries to explain the context of Fuller's internal moral establishment of law through the debate on the relationship between law and morality. In the specific research methods, this paper mainly uses literature analysis, historical investigation analysis and comparative analysis. Through the interpretation of the text to understand the nature of Fuller's legal inherent morality, and according to Fuller's definition of the legal concept, Fuller's legal internal moral theory is finally positioned. The full text is divided into four parts. The first part mainly describes the background of Fuller's inherent morality. First of all, this part takes the debate caused by the "whistleblower case" as the starting point, discusses whether the "draconian law is also the law" or "the draconian law illegal". Finally, the court judgment on this case and the transformation of German jurist Ladbroch from legal positivism to natural law make this debate tend to heat up. Then, starting from the "separation theory" of legal positivism, this paper analyzes the background of their adherence to the "separation theory", and Fuller draws the conclusion that the law and morality are inseparable through his criticism of them. The second part mainly discusses how the inherent morality of law is finally established. Here mainly takes the morality of the law as the research text. This part begins with Fuller's distinction between the morality of desire and the morality of obligation, and through Fuller's detailed exposition of the distinction between the two kinds of morality from the angle of moral yardstick, ethical vocabulary and marginal utility, it is concluded that Fuller's fundamental intention to distinguish the two kinds of morality lies in putting forward the inherent morality of law on this basis. Next, Fuller summed up eight principles in the lessons of Rex's failure to make law. Finally, he analyzed the internal morality of law theoretically and concluded that the inner morality of law is procedural natural law and a kind of desired morality, which contains the understanding of human beings. These positions of internal morality of law show the final establishment of internal morality of law. The third part mainly expounds the value of the inherent morality of the law. Fuller draws the conclusion that the law is a purposeful cause through the criticism and argumentation of the opponents and the definition of the inherent morality of the law, which is also the final destination and value of the inherent morality of the law. Then, from the three angles of legislation, law enforcement and judicature, combined with Fuller's theory of procedural natural law, this paper expounds the guiding value of the construction of the rule of law in our country. Finally, the conclusion part, through a brief exposition of the inherent moral theory of Fuller law, once again explains the value of Fuller theory, and reconfirms its enlightening effect on the rule of law in China.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D909.1
【引证文献】
相关硕士学位论文 前1条
1 李琳;我国刑事诉讼司法解释的现状反思和未来前瞻[D];上海交通大学;2011年
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