拉兹的法哲学趣向——将法律实证主义导向实践哲学

约瑟夫.拉兹是法律实证主义后期的重要代表人物。在研究法律时,他除了继续保持实证主义传统、使用法律实证主义惯用的分析方法以外,还试图用新的方法来替代早期的分析法学家们广为使用的方法,并使用新的哲学理论来改造法律实证主义。他的法哲学思想表现出的一个重要趣向就是：将法律实证主义导向实践哲学。这一趣向贯穿于拉兹法哲学思想的方方面面,是理解拉兹法哲学思想的关键。     

Legalist Fictions and the Problem of Scientific Legitimation

The author analyzes fictions of legal positivist philosophy and their role in the scientific legitimation of modern law and political domination. The original function of legalist fictions was the establishment of legal science, which would be autonomous and independent of other social sciences and public morality. In the second half of the 20th century, legal positivist philosophy has nevertheless adopted the fiction of the just law as its scientific legitimation fiction and incorporated moral and political discourse into legal science, again.
Legal positivism and its critiques within the discourse of the sociology of law and critical legal science keep the image of a hierarchical and centralized legitimation of law. Paradoxically, current legal philosophy and theory searching for a universally valid legitimation scheme is full of many different legitimations and reveals their growing plurality and the impossibility of establishing one sovereign legitimation scheme in the current social, theoretical and political condition.     

Neil MacCormick's Second Thoughts on Legal Reasoning and Legal Theory. A Defence of the Original View

This paper offers a diachronic reconstruction of MacCormick's theory of law and legal argumentation: In particular, two related points will be highlighted in which the difference between the perspective upheld in Legal Reasoning and Legal Theory and the later writings is particularly marked. The first point concerns MacCormick's gradual break with legal positivism, and more specifically the thesis that the implicit pretension to justice of law proves legal positivism false in all its different versions. The second point concerns MacCormick's acceptance of the one‐right‐answer thesis and the consequent thinning of the differences between MacCormick's theory of legal reasoning and that of Ronald Dworkin and of Robert Alexy. The intent, however, is not only to describe this change in MacCormick's thought, but also to attempt a defence of the original view that we find in Legal Reasoning and Legal Theory.     

BETWEEN CLASSICISM AND POSITIVISM: CRIME AND PENALITY IN THE WRITINGS OF GABRIEL TARDE*

This study is a foray into a neglected but nevertheless important area in the intellectual history of the sociology of crime. Its focus is the writings of Gabriel Tarde (1843–1904), an elusive figure who was tremendously influential in his own time yet whose criminology was quickly lost in the even wider acclaim then accorded his contributions to political philosophy and social psychology. Three consistent lines of enquiry in Tarde's considerable discourse on crime are explained here, as follows: (1) his virulent opposition to biological positivism; (2) his attempt to transcend the crude scientism of the Franco-Belgian moral statisticians; and (3) his debate with Durkheim about the putative normality of crime. It is suggested that Tarde's engagement in these debates contributed to a protracted, neoclassical compromise in the domain of penality whereby the legal subject of classical jurisprudence was rescued from the positivist revolution in criminology.     

论中国民法的法学实证主义道路

我国民法当前所面临的诸多问题都可归结为道路选择的问题。要避免法学因法典编纂后如影随形的法律实证主义潮流堕落为"法之蛀虫",继续保持蓬勃的发展势头,为世界民法担当原创使命,并沿一带一路催生新共同法。这是一条法学实证主义的道路。但在法史上,法学实证主义只是法律实证主义等术语的陪衬,近代以来后法典时代的民法发展为此要走很长弯路,才有意无意间重还先贤的定见。应从法史、法哲学、方法论三大维度,认清法学实证主义的根本追求是打开法律实证主义及法典带来的枷锁,确保现行法能自由地进化,确保个案正义,同时却又不断提升现行法的稳定力。这一道路选择将回应再次超越国界、取法乎上、打造新共同法的时代吁求,使中国民法的发展道路深深嵌入世界民法的发展背景之中。而我们当前所面临的诸多问题,也有望从中得到妥当的解决。     

Stuntman for the State: Loughlin's Idea of Public Law

Abstract. This paper provides a critical analysis of Martin Loughlin's pure theory of public law as developed in his more recent work. I argue that the pure theory makes a series of errors and rests on a set of assumptions that make it inappropriate to provide the legal framework for any social‐democratic polity. Specifically, the theory concedes too much latitude to the functional needs of the state and organised politics, and pays too little deference to processes of political opinion and will formation in civil society. As such, it only succeeds in establishing law's connection to the public realm, at the cost of effacing its internal relationship to the rule of law and democracy.     

Continuity and Change in Legal Positivism

Institutional theory of law (ITL) reflects both continuity and change of Kelsen's legal positivism. The main alteration results from the way ITL extends Hart's linguistic turn towards ordinary language philosophy (OLP). Hart holds – like Kelsen – that law cannot be reduced to brute fact nor morality, but because of its attempt to reconstruct social practices his theory is more inclusive. By introducing the notion of law as an extra-linguistic institution ITL takes a next step in legal positivism and accounts for the relationship between action and validity within the legal system. There are, however, some problems yet unresolved by ITL. One of them is its theory of meaning. An other is the way it accounts for change and development. Answers may be based on the pragmatic philosophy of Charles Sanders Peirce, who emphasises the intrinsic relation between the meaning of speech acts and the process of habit formation.     

Legislative Intentions and Counterfactu-als: Or,What One Can Still Learn from Dworkin's Critique of Legal Positivism

Riggs v. Palmer has become famous since Dworkin used it to show that legal positivism is defective. The debate over the merits of Dworkin's claims is still very lively. Yet not enough attention has been paid to the fact that the content of the statute at issue in Riggs was given by the counterfactual intention of the legislature. According to arguments from legislative intent, a judicial decision is justified if it is based on the lawmaker's intention. But can legislative intentions be determined counterfactually? More generally, what are the discursive commitments undertaken by a lawyer or a judge, in an exchange of legal reasons, when using this interpretive methodology? This paper addresses these issues considering, in particular, David Lewis's “resemblance” condition and “relevant similarity” between possible worlds in the evaluation of counterfactual statements. The analysis sheds some new light on the debate on theoretical disagreements and shows that Dworkin's conception of law as an argumentative practice is not necessarily at odds with legal positivism. It rather allows us to look at it under a better light.     

The Concept of Jurisprudence*

Abstract. The first part of this article contains (i) considerations as to the relationship between jurisprudence and legal dogmatics, legal philosophy, and sociology of law; (ii) considerations about the status of jurisprudence both as a meta- and an object-theory. These lead to the suggestion that jurisprudence should be defined as a general juristic theory of law and legal science. In the second part, the character and elements of this definition are explained systematically. The article's main thesis is that jurisprudence is not distinguished from legal philosophy and sociology of law by its subject or its method, but by the specifically juristic research aspect or perspective it is based upon.     

The Inevitability of Moral Evaluation*

According to contemporary legal positivism, law claims to create obligations. In order for law to be able to create obligations, it must be capable of having authority. Legal positivism claims that for law to be capable of having authority, it only has to meet non‐moral or non‐normative conditions of authority. In this paper it is argued that law can only be capable of having authority if it also meets certain normative conditions. But if something must meet certain normative conditions in order to be capable of having authority and if it must be capable of having authority in order to be law, then it is only law if it is conceivable that it meets these normative conditions and this can only be ascertained by means of an evaluation. Therefore, legal positivism's claim that determining what the law is does not necessarily, or conceptually, depend on moral or other evaluative considerations (the separation thesis) is incompatible with its claim that law must be able to create obligations. Further, an analysis of Hart's concept of law shows that it is not only possible that the identification of the law depends on moral evaluation, as Hart claims, but that it is conceptually necessary that it does.     

Liberalism and Legal Moralism: The Hart-Devlin Debate and Beyond*

Abstract. The legitimate impact of common morality on legal restrictions has been continuously discussed within the Western philosophy of law since Lord Patrick Devlin in the late 1950s presented his moralistic arguments against some liberal conclusions drawn by the English Committee on Homosexual Offences and Prostitution in their public report. Devlin's arguments were subsequently identified and refuted by Richard Wollheim, H. L. A. Hart and Ronald Dworkin, but in a way that later provoked further argument. In particular the attack against anti-moralistic principles set forth by Simon Lee (1986) owes much to the rather naive liberalism represented by the opponents of Devlin. The battle over liberalism and moralism from the Hart-Devlin debate to the present day is reviewed. In addition to the discussion of the philosophers mentioned above, a potential flaw in the argumentation of Joel Feinberg (1986) is considered.     

Secret Laws

There is a thesis that legal rules need to be made public because people cannot guide their conduct by rules they cannot know. This thesis has been a mainstay of anti‐positivism and the controversy over it continues apace. However, positivism can accommodate the secret laws thesis. The deeper import of the debate over secret laws concerns our understanding of law's nature. In this regard secrecy merits attention as a candidate necessary connection between law and immorality. In addition the mediating role of lawyers as experts in ascertaining the law should be highlighted. It has been widely overlooked despite the fact that lawyers are criterial in Hart's concept of law.     

A Typological Reading of Prevailing Legal Theories

A classic debate in the history of philosophy is that between rationalists and empiricists concerning the “true” source of human knowledge. In legal philosophy this debate has been reflected in the classic opposition between natural law and legal positivist perspectives. Even the currently predominant inclusivist perspectives on the nature of law, such as inclusive legal positivism and inclusive legal non‐positivism, are not immune to such a dichotomy. In this paper I attempt to present an understanding of specific cognitive characteristics of prevailing legal theories from the perspective of the theory of psychological types as developed by Carl G. Jung.     

Law's Social Forms: A Powerless Approach to the Sociology of Law

Since the law and society movement in the 1960s, the sociology of law in the United States has been dominated by a power/inequality approach. Based on a sociological distinction between the forms and substances of law, this article outlines a “powerless” approach to the sociology of law as a theoretical alternative to the mainstream power/inequality approach. Following Simmel and the Chicago School of sociology, this new approach analyzes the legal system not by its power relations and patterns of inequality, but by its social forms, or the structures and processes that constitute the legal system's spatial outlook and temporality. Taking a radical stance on power, this article is not only a retrospective call for social theory in law and society research, but also a progressive effort to move beyond US‐centric sociolegal scholarship and to develop new social science tools that explain a larger variety of legal phenomena across the world.     

Sanction and Obligation in Hart's Theory of Law

Abstract. The paper begins by challenging Hart's argument aimed to show that sanctions are not part of the concept of law. It shows that in the “minimal” legal system as understood by Hart, sanctions may be required for keeping the legal system efficacious. I then draw a methodological conclusion from this argument, which challenges the view of Hart (and his followers) that legal philosophy should aim at discovering some general, politically neutral, conceptual truths about law. Instead, the aim should be to discover the values because of which certain things in the world are classified as law and others as non‐law. Focusing on those would give us a more insight to the roles law plays in society, as well as more illuminating answers to traditional jurisprudential questions like the status of law in evil regimes.     

法律的公众认同、功能期许与道德承载对刑法修正案(八)的复眼式解读

刑法修正案(八)不但针对我国转型时期的社会情势和国情民意予以了很大程度的回应，而且也体现了官方和主流民意对刑法的功能期待，承载了当下社会基本的集体道德情感，但被一些刑法改革者认为立法理性不够或过多地迁就了庸俗的民粹主义，以致没有较好地摆脱传统工具主义和重刑主义的思维与窠臼。诚然，转型时期高度复杂的社会情势和大众心理基质难免使得实定刑法所蕴含的价值理念互有差别、充满悖反乃至相互抵牾。欲对这种吊诡的多重面向予以同情之理解与有效的解读，除了法学与逻辑的思维论证，更重要的可能还必须导入法律社会学、社会心理学和法律经济学等多维度的复眼化视角。     

Between Law and Transnational Social Movement Organizations: Stabilizing Expectations of Global Public Goods

This article draws on Niklas Luhmann's theory and method to present transnational social movement organizations as a solution to the problem of increased expectations of global public goods which fail to find adequate accommodation in law. As a concrete example of the limits of law in this respect, it examines the non liquet of the World Court on the question of the illegality of nuclear weapons. The trajectory of anti‐nuclear norms is traced beyond the limits of law to the alternative structure of transnational social movement organizations, and the article presents such organizations as stabilizing increased expectations of global public goods through their recursive decision making and their capacity to continuously project those expectations at the legal and political systems. This generates observations on the concept of ‘global governance ‘, the structural relations between global civil society and international law, and the role of this form of organization in the evolution of the global political system.     

Karl Olivecrona's Legal Philosophy. A Critical Appraisal*

I argue in this article (i) that Karl Olivecrona's legal philosophy, especially the critique of the view that law has binding force, the analysis of the concept and function of a legal rule, and the idea that law is a matter of organized force, is a significant contribution to twentieth century legal philosophy. I also argue (ii) that Olivecrona fails to substantiate some of his most important empirical claims, and (iii) that the distinction espoused by Olivecrona between the truth and the correctness of legal statements is problematic but not needed in Olivecrona's legal philosophy.     

Injustice in Robes: Iniquity and Judicial Accountability*

The paper addresses the question of judges' moral responsibility in an unjust society. How is the “moral” judge to reconcile his perception of justice with a malevolent law? Upon what grounds might judges, and perhaps other public officials, be held morally responsible for their acts or omissions? Does a positivist approach yield a more satisfactory resolution than a natural law or Dworkinian analysis? Could inclusive positivism offer any clues as to how this quandary might be judiciously resolved?     

One Myth of the Classical Natural Law Theory: Reflecting on the “Thin” View of Legal Positivism

Much controversy has emerged on the demarcation between legal positivism and non‐legal positivism with some authors calling for a ban on the ‐as they see it‐ nonsensical labelling of legal philosophical debates. We agree with these critics; simplistic labelling cannot replace the work of sophisticated and sound argumentation. In this paper we do not use the term ‘legal positivism’ as a simplistic label but identify a specific position which we consider to be the most appealing and plausible view on legal positivism. This is the view advocated by Gardner in his paper 'Legal Positivism: 5½ Myths’ (Gardner 2001 , 199), where he carefully scrutinises the most convincing and unifying postulates of legal positivism, which he calls “the thin view”. The study shows that this thin view presupposes an empirical conception of action that is untenable and implausible since it makes acts of engagement with the law unintelligible to an observer of such acts.