检视描述性法理学

Review of Descriptive Jurisprudence

哈特希望能够在同一框架内同时解决法律的社会面向和规范性面向,其给出的解决方案为“内在观点的观念”,即从价值中立的角度对参与者的内在面向进行观察,以说明法律的规范性面向,这也被称为描述性法理学。如此,当在描述法律现象之时,就能够实现社会面向与规范面向的统一。哈特的描述性法理学固然是极具洞察力的,但是同时也面临着尖锐的质疑。这些批评认为描述性法理学并不能够说明法律赋予行动理由的特征,更重要的是,它不可能持有道德中立的立场。然而,描述性法理学并没有因此而丧失重要性与可能性,在“可理解性命题”与“重要性价值”的诠释下,这种理论仍是最为重要的法学方法论之一。

Hart wanted to be able to address both the social and normative aspects of the law within the same framework, and the solution he gave was the “conception of the internal viewpoint”, i.e., a value-neutral view of the internal orientation of the participants in order to account for the normative aspect of the law, which is also known as descriptive jurisprudence. In this way, when describing legal phenomena, it is possible to realize the unity of the social and normative orientations. While Hart’s descriptive jurisprudence is certainly insightful, it has also faced sharp skepticism. These criticisms argue that descriptive jurisprudence does not account for the characterization of law as giving reasons for action and, more importantly, that it cannot hold a morally neutral position. However, descriptive jurisprudence has not lost its significance and possibilities, and remains one of the most important legal methodologies under the interpretations of “comprehensible propositions” and “value of significance”.