论习惯的内在化及其法哲学意义——对哈特习惯理论的反思与推进

On Internal Points of Habit and Its Meaning of Legal Philosophy:Reflection and Inference of Hart's Theory of Habit

关于哈特习惯理论的既有研究忽视了习惯本身的复杂性,这形成了将习惯等同于社会习惯的误解,其根本错误均指向了习惯不同于规则的非前瞻性与无内在观点。通过对哈特习惯理论的初步考证与再考证,得出习俗规则不同于社会习惯的规则属性以及习俗规则与个体习惯具有内在观点的隐藏性观点。借助于法哲学领域的辩证性理论与自由价值原理的进一步梳理,再一次论证了习惯具有前瞻性与内在观点。这不仅与规则向个体习惯转换的微循环理论形成呼应,还能将规则被社会公众接受的原理奠定在与之对应的具有内在观点的个体习惯的实践上。

Existing research on Hart's theory of habit ignores the complexity of habit, which leads to the wrong conclusion that habit is the same as group habits and convention is not the generalized concept of habit. The fundamental errors all point to the viewpoint that a habit is different from a rule that habit does not have an "internal aspect" and atrribute of forward-looking. Through the preliminary research and re-examination of Hart's theory of habit, it is concluded that customary rules are different from group habits and customary rules and habit may have internal points of view. With the analysis of dialectical theory and theory of values of freedom in the field of legal philosophy, it demonstrates once again that habit has an "internal aspect" and an atrribute of forward-looking. This is not only in line with the microcirculation theory that a rule could transform into an individual habit, but also can lay the principle of rule being accepted by the public on the practice of corresponding individual habit of internal points of view.