超越“恶法非法”与“恶法亦法”——法律与道德关系的本体分析

Beyond "Evil Law as Not Law" and "Evil Law as Law too":An ontological analysis of the relation between morality and law

道德与法律的关系是法理学史上至今没有定论的难题。自然法学认为二者存在必然联系,因此主张"恶法非法";分析实证主义法学认为二者无必然联系,因此主张"恶法亦法"。两家各有其片面性。道德与法律属于社会规范的范畴,共性在于它们都是关于社会行为应该如何的道德价值,道德是道德价值的道德表现形式,法律是道德价值的法律表现形式;区别主要在于法律有国家权力保障而道德则没有。道德与法律在社会中是一种交叉关系,既有相同的规则也有不同的规则,因此就会出现合法不合理或合理不合法的两难情形。在传统人治时代,由于二者都没有权威,对该问题的处理最终取决于统治者的意志;而在现代法治国家,法律具有至高地位,则应当在法律体制内解决该问题。

The relation between morality and law is a tough question of jurisprudence, where no accepted conclu- sion has been reached so far. The natural law theory argues that there should be an inevitable relation between them and that ＂evil law is not law＂; however, the legal positivism suggests the opposite： ＂evil law is also law＂. Both are all one- sided. Actually, morality and law belong to the category of social norms. The common character is that they are both moral value of social behavior, that morality is the moral form of moral value, and that law is the legal form of moral value. The major difference is that law is protected by state power but morality is not. In fact, there should be a crossing area between them; that is, they both have similar and different rules,so the dilemma between the legal and the unrea- sonable, or between the reasonable and the illegal, is inevitable. In traditional, man-ruling country, neither of them has an authority, and the ruler has the final say. Nevertheless,in modern law-ruling country, law has the supreme status, and problems should be solved within the legal system.