摘要
在20世纪所发生的哈特与富勒之间的一场论战中,哈特为实证主义的分离主张辩护,并将“分离说”的内涵作了更为具体的表述,而富勒则从法律秩序的道德基础和法律自身的道德性出发强调法律与道德的不可分。从表面上看,其论争的焦点在于法律与道德是分离还是结合,而实质上他们是从各自的问题意识出发,强调了对于实现“忠于法律”这一法治目标来说至关重要的不同的方面。这场论战对于我国法治建设的最大启示是:当我们强调法律的实质正义目标时,我们不应简单地用道德的逻辑和标准去替代法律的逻辑及标准;而当我们强调法律相对于道德、正义的独立性时,我们不应忽视对法律自身道德性的培育。
In the last century there occurred a famous debate between H. L.A. Hart and Lon L. Fuller over the relationship of law and morality, which has been seen as the historic confrontation between legal positivists and natural law thinkers. As the debate ended, it is usually delineated that the legal positivists insist on the separation of law and morality and the natural law thinkers insist on the un separation of law and morality, This is ahnost the settled conclusion about the debate. Such a blanket conclusion, however, should have concealed the debaters＇ deep awareness of jurisprudent problems and its profound significance in legal practice.
In the debate, Hart definitely defended the legal positivism against criticisms which appeared at his time and reiterated a strict separation of law and morality. The separation thesis which is typically formulated in terms of ＂the separation of law as it is and law as it ought to be＂, according to Hart＇s explication, means two simple things： first, in the absence of an expressed constitutional or legal provision, it could not follow from the mere fact that a rule violated standards of morality that it was not a rule; second, it could not follow from the mere fact that a rule was morally desirable that it was a rule of law. Here actually exist two kinds of ＂morality＂ - one refers to ＂all notions of ＇what law ought to be＇ ＂ in the conceptually general sense and the other refers to ＂extra legal notions of＇ what law ought to bet ＂ in the practically applied sense. Correspondingly, there also exist two kinds of ＂separation＂ . one means the exclusion of all values, including internal legal value, from law as facts and the other only means the exclusion of extra- legal value from law. Usually Hart and his predecessor held the separation thesis in the second meaning in order to define the range of law accurately and make fidelity to law possible. But sometimes they, especially Hart, tended to extend the separation-proposition to the more general level to such an extent of eliminating internal legal value from law and this to some degree directly led to Fullers counterthrust at positivist separation-advocacy.
In Fuller＇s opinion, the positivist position of separating morality from law is theoretically inadequate, if fidelity to law is the common-shared goal. Once the law was stripped of its own value, there would be no way to guarantee that law possesses the qualities of deserving loyalty. Moreover, separating morality from law would in practice lead to the dilemma of ＂evil law is the law＂, which would make the obligation of fidelity to law meaningless and even have to scarify the ideal of fidelity to law at last in order to fulfill the basic demand for justice. It would also make for the impossibility of realizing the ideal of fidelity to law because of the fact that there is no legal criterion for judges of what they should do in order to discharge their duty of fidelity to law when they are involved in difficult situations in that some choices have to be made during the every-day＇s operation of law. So only when the moral ingredients of what law ought to be have been incorporated into the concept of law could the quality of deserving maffs respects for law be assured and would the realization of the ideal of fidelity to law become possible and necessary. According to Fuller＇s perspective, law as a human enterprise, has its own purpose and this very intrinsic purpose generates the law＇s internal morality of which Fuller had discerned eight desiderata. This morality constitutes the conditions for the existence of a legal system and guides and constrains the official behaviors during the process of creation and implementation of legal rules so that the evil law could be effectively avoided and the legitimacy of legal system could be ensured. Meanwhile, the internal morality could supply to judges some criterion which is no longer the substantial criterion provided by traditional natural law but the procedural one of what law ought to be and make it possible for }udges to apply and interpret the law on the secure footing even in the disputable situation. Therefore, law and morality have necessary connection, Fuller argued.
At first appearance, this debate focused on whether or not law and morality are or ought to be separated and Hart and Fuller proposed the completely opposite viewpoints. But after a close analysis of what the separation- thesis and connection-thesis really mean, it shows that both Hart＇s position of separation and Fuller＇s position of connection had stressed the essential yet different aspects under their distinctive question awareness for maintaining the rule of law. When Hart insisted on the separation of law and morality, he was mainly stressing the independence of law on morality and justice in the judicial process and to this somewhat ＂qualified separation＂ Fuller had no intention to object. When Fuller insisted on the connection of law and morality, he was stressing the urgent need for internal legal morality in order to keep the integrity of law itself after being stripped of all kinds of the extra-legal morality and with this ＂connection after being separated＂ Hart also expressed his limited agreement. So the significance of the debate lies in the better understanding of what sense of separation or connection between lawand morality we ought to insist on if rule of law is our common goal. The most enlightening revelation this debate has provided for our country＇s legal construction is that： when we place emphasis on the substantial justice as our legal end, we could not simply substitute moral logic and standards for legal ones~ and when we emphasize independence of law on morality and justice, we should not neglect the cultivation of the morality of law itself.
出处
《浙江大学学报（人文社会科学版）》
CSSCI
2007年第1期144-152,共9页
Journal of Zhejiang University:Humanities and Social Sciences
基金
国家社会科学基金资助项目(413203101S10401)
关键词
法治
法律的道德性
哈富论战
自然法学
实证主义
rule of law
the morality of law
Hart-Fuller debate
natural law theory
positivism
