分析实证主义法学的评析与批判

Analysis and Criticism of Analytical-Positivist Jurisprudence

分析实证主义法学作为近代西方三大主要法学流派之一,其地位和重要性自然不言而喻。处于主导地位的哈特等人对法的概念、法律关系、法律责任等进行的分析和梳理中,无论是奥斯丁的“命令说”、凯尔森的“规范说”还是哈特的“规则说”,在当时都存在诸多的缺陷和不足,但从某种程度上讲正是这些理论上的缺陷和实践中无法应对的难题才使得分析实证主义学法最后逐渐走向与自然法学的融合。尽管分析实证主义学法曾遭受各方的猛烈批判,但亦对统一当时西方混乱的思想认识产生了不可磨灭的积极作用,尤其是其分析方法至今仍然在西方法学的场域内发挥着一定的应用价值。

As one of the three major legal schools in modern West, the status and importance of analyticalpositivist jurisprudence are naturally self-evident. As the dominant position, Hart and others analyzed and combed the concept of law, legal relationship, legal liability, etc., no matter Austin’s“imperative theory of law”, kelsen’s“Normative theory”or Hart’s“theory of rule”, they all had many defects and deficiencies at that time, but to some extent, it is these theoretical defects and difficult problems which cannot be dealt with in practice that make them gradually merge with natural law at last. Although it had been severely criticized by all parties, it also played an indelible and positive role in unifying the chaotic thinking and understanding of the West at that time, in particular, the analytical method still plays a certain application value in the field of Western law.