法律道德性：法律，抑或道德？

The Morality of Law:Law,or Morality?

富勒在批评哈特的承认规则不足以作为法律权威基础时提出了"法律道德性"这一概念。法律道德性内含于法律的内在目的。法律的内在目的决定了一个法律制度存续的基本条件,因而这八方面要求实际上构成了法律之所以是法律的基本要素。法律道德性在实践运用中有"义务德"和"愿望德"两种形式,前者以法律的形式规范法律的创造和管理过程,后者则作为法律创制者和管理者的角色道德发挥作用。法律道德性在性质上既是法律,又是道德,在法律实践中它同样既以法律又以道德的形式规范着法律的创造和管理过程。

The morality of law, expounded by Lon Fuller in criticizing H. L. A. Hart＇ s rule of recognition, is a inner factor of the aim of law which constitute the fundamental condition of legal system and the eight requirements of which form basic element of law. The morality of law could be divided into “morality of obligation” which regulates the creation and regulation of law in the form of law, and “morality of desire” which functions as the morality of role of the creator and regulator of law. In nature, the morality of law is both law and morality, and it regulates the process of creation and regulation of law in the two forms. Therefore, it pro- rides rational basis of authority of law, founds a principle to solve realistic problems and security for the perfection of law.