摘要
法律和道德的关系是什么的问题是中西方理论界和实务者千百年探寻和破解的难题。在法学领域,自然法学和实证法学作出了不同的解答,值得关注的是,新分析实证主义法学的翘楚人物哈特一改传统实证主义的观点,对法律与道德的关系重新作了解读,他在坚持实证主义原则立场的基础上提出了法律与道德相对分离的观点。他的这种观点对于我国当前的依法治国和以德治国具有重要启示。首先,从原则上看,我们应当坚持法律与道德分离,使法律具有自身的品格和气质,这是我们当前追求法律的秩序价值和规则意识的内在要求;其次,我们在坚持原则的同时,不能断然割舍法律与道德实际存在的某种联系,承认法律与道德理性结合的现实,这是我们当前追求法律实质正义、坚持以人为本的司法观的应有之义。唯其如此,我们才能使依法治国和以德治国完美契合,使法律和道德在调试我们的社会生活中各显其能、互助互补。
Through the centuries, the relation between law and morality is a difficult question for researchers and practitioners fi＇om China and the west. In the field of jurisprudence, natural law and positive law answered this question in different ways. What should be of concern is that Hart, the leader of the analytical positivist school of law, changed the traditional positive point of view and made a new interpretation of the relation between law and morality. On his ad- herence to the principle of legal positivism, he pointed out that the law and morality should be relatively separated. This is an important enlightenment for China＇s strategy of ruling the country by law and ruling the country by virtue. Firstly, in principle, we should stick to the separation between law and morality to give law the due temperament and character, which is a basic requirement for us to pursue the legal values of order and rule consciousness. Secondly, while we are sticking to the principle, we cannot absolutely give up the certain relation that actually exists between law and morality. Nowadays, to pursue the judicial view of legal substance justice and putting people first, we should acknowledge the combination of law and morality. Only in this way can we make ruling the country by law and ruling the country by virtue fit together perfectly, and make law and morality perform their respective duties and complement each other at the same time in the function of adjusting our social life.
出处
《晓庄学院社会科学学报》
CSSCI
北大核心
2014年第2期36-40,共5页
Journal of Social Science of Hunan Normal University
关键词
法律与道德
相对分离
现实启示
law and morality
relatively separated
practical enlightenment
