法律与道德_分离后的结合_重温哈特与富勒的论战对我国法治的启示.pdf

37 1 ( ) Vol. 37, No. 1 2007 1 Journal of Zhejiang University(Humanities and Social Sciences) J an. 2007 法律与道德: 分离后的结合 ) ) ) 重温哈特与富勒的论战对我国法治的启示 孙笑侠, 麻 鸣 ( , 310028) [ ] 20 , , / 0 , , , , / 0 : , ; , [ ] ; ; ; ; [ ] D90- 053 [ ] A [ ] 1008- 942X( 2007) 0 1- 0 144- 09 Law and Morality: Connection after eing Separated SU N Xiao-x ia, M A M ing ( D ep ar tme nt of L aw , Zhej i ang Un iv e rs i ty , H angz hou 310028, Ch ina) Abstract: In th last c ntury th r occurr d a famous d bat b tw n H . L. A. Hart and Lon L. Full r ov r th r lationship of law and morality, w hich has b n s n as th histor ic confrontation b tw n l gal positivists and natural law think rs. A s th d bat nd d, it is usually d lin at d that th l gal positivists insist on th s par ation of law and morality and th natural law think rs insist on th un-s paration of law and morality. This is almost th s ttl d conclusion about th d bat . Such a blank t conclusion, how v r, should hav conc al d th d bat rs' d p aw ar n ss of jurisprud nt probl ms and its pr ofound significanc in l gal practic . In th d bat , Hart d finit ly d f nd d th l gal positivism against cr iticisms w hich app ar d at his tim and r it rat d a strict s paration of law and morality . Th s paration th sis w hich is typically formulat d in t rms of dth s par ation of law as it is and law as it ought to b d, accor ding to Hart ' s xplication, m ans tw o simpl things: first, in th abs nc of an xpr ss d constitutional or l gal pr ovision, it could not follow from th m r fact that a rul violat d standards of morality that it w as not a rul ; s cond, it could