哈特：一個站在局內(nèi)的局外人
發(fā)布時間：2019-04-01 19:38
【摘要】：實證主義法學(xué)派自誕生之日起,便一直致力于回答“法律是什么”這個令人無比神往又使人頗為費解的問題。自邊沁創(chuàng)立功利主義法理學(xué)學(xué)說以來,實證主義法學(xué)家們便沿著邊沁的足跡堅定地將經(jīng)驗主義作為他們研究法理學(xué)問題的哲學(xué)基礎(chǔ)。奧斯丁通過梳理主權(quán)者、法律命令、懲罰等一系列概念,提出了“法律是主權(quán)者的命令”這一重要命題。然而,這一命題在哈特看來存在著種種缺陷,它不可能很好的解釋某些特定法律的產(chǎn)生以及運行。作為實證主義法學(xué)派在二十世紀(jì)的代表人物,哈特在其《法律的概念》一書中創(chuàng)立了“法律規(guī)則”學(xué)說。通過區(qū)分“第一性規(guī)則”與“第二性規(guī)則”、“內(nèi)在觀點”與“外在觀點”以及法律的“清晰地帶”與“模糊地帶”這三組概念,哈特自信能夠提出一種“描述的社會學(xué)”式的法理學(xué)理論用以回應(yīng)其它法理學(xué)學(xué)派(尤其是自然法學(xué)派)對實證主義法學(xué)派的批評。 如同自己的前輩們一樣,哈特也堅守著一脈相承的經(jīng)驗主義哲學(xué)傳統(tǒng)。然而,這并非是哈特唯一的靈感源泉與理論支撐。通過分析和研究哈特所提出的“內(nèi)在觀點”與“模糊地帶”等概念,我們不難發(fā)現(xiàn)在哈特的法理學(xué)徑路的土壤中明顯的充滿著語言哲學(xué)的元素,而中后期維特根斯坦的日常語言哲學(xué)理論更是對哈特的思想產(chǎn)生了莫大的影響。像哲學(xué)史上那些卓越拔群的理論一樣,維特根斯坦的日常語言哲學(xué)理論同樣面對著諸多誤解與歪曲。哈特很好的把握住了維特根斯坦語言哲學(xué)中的“現(xiàn)象學(xué)”成分,并成功的將其應(yīng)用到自己的法理學(xué)理論中,并自信以此能夠克服法律實證主義的某種“客觀性之難”。然而,正如羅納德·德沃金所指出的一樣,哈特的學(xué)說留下了一扇“凱卡波爾塔”之門——正是由于這扇小門的敞開,使得個人權(quán)利在哈特的學(xué)說中實際上也處于一種危險的境遇之中。 本文試圖指出的是:這扇“凱卡波爾塔”之門的開啟,是與哈特對維特根斯坦的誤讀息息相關(guān)的。在某種程度上,哈特既沿襲了維特根斯坦又反對了維特根斯坦。本文的理論意義主要在于:通過將哈特乃至其前輩學(xué)者的理論與維特根斯坦的思想進(jìn)行對比,還原自哈特以來的法律實證主義學(xué)說的維特根斯坦背景,并最終指出,哈特與維特根斯坦思想之合離的更深層次的法理學(xué)以及哲學(xué)原因。這一研究對于我們正確理解哈特之學(xué)說有著重大的理論意義。
[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.
【學(xué)位授予單位】：西南政法大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2011
【分類號】：D90
本文編號：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.
【學(xué)位授予單位】：西南政法大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2011
【分類號】：D90
【參考文獻(xiàn)】
相關(guān)期刊論文 前2條
1 陳銳;論法律實證主義[J];河南師范大學(xué)學(xué)報(哲學(xué)社會科學(xué)版);2005年01期
2 H.L.A.哈特,翟小波,強世功;實證主義和法律與道德的分離(上)[J];環(huán)球法津評論;2001年02期
，本文編號：2451837
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