谁更忠于法律——我看哈特与富勒论战

Who Has More fidelity to Law——The Argument of Hart and Fuller

哈特与富勒为了同一个忠于法律的目标,提出了完全相反的主张。从表面上看,哈特坚持的"分离说"与富勒所辩护的"结合说"是两种水火不容、完全对立的理论主张,但如果仔细分析哈特所坚持的"分离"与富勒所坚持的"结合"究竟意味着什么,就会发现他们不仅有共同的目标,而且在"如何实现目标"的具体认识上存在着基本的一致性。

In order to achieve a duty of fidelity to law,Hart and Fuller chose quite different views.Hart considered a strict separation of law and morality as a term ＂ the separation of law as it is and law as it ought to be＂ in order to define the range of law accurately and make fidelity to law possible.In Fuller＇s opinion,separating morality from law would in practice lead to the dilemma of ＂ evil law is the law＂,which would make the obligation of fidelity to law meaningless and even have to scarify the ideal of fidelity to law at last in order to fulfill the basic demand for justice.