我国法理学中“法律规则”论拷问

A Query on the Topic “Legal Rules” in Chinese Jurisprudence

当前法理学中"法律规则"论通常包括法律规则定义、法律规则逻辑构成、法律规则分类等内容。但是,以"行为——权利/义务"为核心的法律规则定义过窄,根本无法涵容所有法律规则;法律规则逻辑结构理论中所谓的"新三要素说",以"行为模式"为切入点,当然也无法用于分析那些不以"行为"为对象的法律规则。通过借鉴哈特的第一性规则与第二性规则理论,这些问题可以部分得到化解。

The topic of Legal Rule in Chinese Jurisprudence generally consists of definition of legal rules or logical structure of le- gal rules or classification of legal rules, etc. However, legal rules are defined as behavior rules with rights and obligations as their focus. This definition is too narrow and cannot cover all the legal rules. Of course, the so - called ＂New Three - Elements Doc- trine＂ focused on ＂behavior model＂ in logic Structure theory of Legal Rule can not be used to analyze the rules which do not take ＂behaviors＂ as objects. Such difficulties can partly be resolved by seeking help from Hart＇ theory on Primary rules and Seconda- ry rules.