论哈特的法律规则谱系及其对法治中国的启示

On Hart's Legal Rules Pedigree and Its Enlightenment of China Ruled by Law

哈特的法律规则理论引导了现代英美法理学界的发展路向,并进一步发展了法律实证主义。哈特理论的核心在于初级规则与次级规则的结合,初级规则是科以义务的规则,次级规则是授予权利的规则。在承认规则、改变规则和审判规则这三项次级规则中,最重要的莫过于承认规则。它是衡量其他规则效力的鉴别标准。对当今法治中国建设而言,哈特的法律规则理论其启示意义重大。特别是深化司法改革与推行案例指导制度境遇下,裁判规则与哈特的承认规则类似,都是对法律规则效力的认可与践行。通过司法治理实现法治中国的善治,不仅需要依靠法律规则的刚性权威,更需要裁判规则发挥柔性开放的亲和力。

Hart＇s legal rule theory leads the modern development of British and American law schools and further improves legal positivism. The core of Hart＇s theory lies in the combination between primary rules and the secondary ones. Primary rules are about duty, while secondary rules are about giving rights. Among three secondary rules, in which there are admitting, changing, and judging rules, the most important one is admitting rules, who serves as a measurement to weight the force of other rules. As for China＇s legal development today, Hart＇s legal rules theory means much. Especially under the circumstance of judiciary reform and the guidance of preceding cases, adjudication rules are similar to Hart＇ s recognition rules, both of which are the practice of legal rule force. To perfect the execution of law in China through judicial governance, we need to rely on the authority of legal rules, but also on the soft power of adjudication rules.