分离命题与法律实证主义

The Separation Thesis and Legal Positivism

法律与道德的分离命题是法律实证主义的一项重要主张,它包含了弱的和强的两种分离命题。哈特主张的是弱分离命题,它主张在法律的合法性标准的外在方面法律与价值的必然分离。弱分离命题需要社会事实命题的支持,它没有资格作为法律实证主义的基础命题。而在合法性标准的内在方面,法律与道德存在必然联系。内在必要联系命题可以为法律的规范性提供合理说明,并为消除自然法与法律实证主义的对立和融合两者提供了新的理论前景。

The separation thesis is an important claim of legal positivism, which includes two types of separation theses, the ‘strong＇one and the ‘weak＇one. What Hart really claims is the weak separation thesis, which means that there is necessary separation between law and value in external aspect of legality standard of law. The weak separation thesis needs the support of social fact thesis. Thus, it is not qualified to be basic thesis of legal positivism. As far as internal aspect of legality standard of law is concerned, there is necessary connection between law and morality. Internal necessary connection thesis reasonably explains legal normativity. It also offers a new theory picture for eliminating the opposition between natural law and legal positivism as well as blending both of them.