告密、良心自由与现代合法性的困境——法哲学视野中的告密者难题

Informing,Freedom of Conscience and theDilemma of Modern Legality :Grudge Informer's Quandary in Legal Philosophy

告密者案件不是一般意义的疑难案件,而是一个"根本性的疑难案件",其中不仅牵涉到法律解释的争议,也牵涉到对法律合法性的争议。德国法院对告密者案件的真实裁决是审慎严谨的,比起哈特的方案,这些裁决更合于法律实证主义忠于法律的宗旨。拉德布鲁赫和富勒对这个案件的建议都比哈特方案更好,哈特方案并不能回避恶法非法的问题。纳粹统治时期司法沦为犯罪工具,法官丧失良心自由,这是现代社会真实的合法性困境。

The Grudge Informer case is not a normal hard case, but a fundamental case, in which lawyers reasonably disagree about the appropriate outcome because they not only disagree with interpretation of law but also because their views about legality. The decisions of German court on this type of case are very prudential and careful, they are more coincident with the positivist ideal of fidelity to law than Hart＇s retroactive treatment. Radbruch and Fuller＇s presentation of the problem in the case is better than Hart＇s treatment which cannot avoid the problem of ＂an unjust law is no law at all＂. During the Nazi period, the law was used as an instrument of injustice and the judges lost their freedom of conscience, which is the true dilemma of modern legality.