“恶法亦法”命题的两面性分析

Analysis of two-sidedness of "an unjust law is still law" thesis

基于简单化理解,分析实证主义法学派始终饱受误解和质疑。与自然法相比,法律实证主义关注的重心发生了"位移":前者关注的是法律"是"什么的定义问题,而后者关注的是法的实效层面的对策、策略问题。通过对"恶法非法"及与之关联的"恶法亦法"命题的分析,指出自然法学派与法律实证主义法学派的观点都具有两面性,二者的差别应当在认识论、方法论的意义上理解,而不应简单理解为本体论上的对立。就此来说,法律实证主义的考虑可能更为周全、稳妥。

Due to the simplified comprehension, the legal school of analytical positivism has been misunderstood and queried all the time. Compared with the theory of natural law, legal positivism has changed its focus：the former focuses on the definition that what law is, while the latter emphasizes the measures and tactics of law on actual effect dimension. Through the analysis of the thesis of ＂an unjust law is not law＂ and its opposite thesis of ＂an unjust law is still law＂, it argues that the viewpoints of natural law and legal positivism both have pros and cons. The difference between the two should be understood through epistemology and methodology instead of understanding as contradiction in ontology. Taking all this into consideration, it is safer to say that legal positivism is more comprehensive and reliable.