Transcript 英國分析實證主義（一）
哈特 規則系統 楊智傑 老師 生平 • Herbert Lionel Adolphus Hart (1907-1992) was an influential English-speaking legal philosopher of the twentieth century. He is the author of The Concept of Law and was Professor of Jurisprudence at Oxford University. Hart developed a sophisticated theory of legal positivism within the framework of analytic philosophy. Hart also made major contributions to political philosophy. 哲學方法 • Hart revolutionized the methods of jurisprudence and the philosophy of law in the English-speaking world. Influenced by J. L. Austin and Ludwig Wittgenstein, Hart brought the tools of analytic, and especially linguistic, philosophy to bear on the central problems of legal theory. Hart's method combined the careful analysis of twentieth-century analytic philosophy with the jurisprudential tradition of Jeremy Bentham, the great English legal, political, and moral philosopher. 奧斯汀的命令理論 • The starting point for the discussion is Hart's dissatisfaction with John Austin's "Command Theory": a jurisprudential concept that holds that law is command backed by threat and is meant to be ubiquitous in its application. Hart likens Austin's theory to the role of a gunman in a bank and tries to establish the differences between the gunman's orders and those made by law. (For instance, the gunman forces us to obey but we may not feel inclined to obey him. Presumably, obedience to the law comes with a different feeling.) 銀行搶匪 • Hart identifies three such important differences: content, origin, and range. In terms of content, not all laws are imperative or coercive. Some are facilitative, allowing us to create contracts and other legal relations. • Austin believed that every legal system had to have a sovereign who creates the law (origin) whilst remaining unaffected by it (range), such as the bank scene's gunman, who is the only source of commands and who is not subject to other's commands. Hart argues that this is an inaccurate description of law, noting that laws may have several sources and legislators are very often subject to the laws they create. 和Kelson的不同 • Hart was also influenced by Austrian legal philosopher Hans Kelsen, though Hart rejected two distinctive features of Kelsen's positivism: the idea that law necessarily requires sanctions; and the neo-Kantian idea that a normative social phenomenon could not be explained purely in terms of social facts. In rejecting the "purity" of Kelsen's "pure theory of law," Hart broke decisively with Kelsen. (Hart and Kelsen, as it happens, grew to detest each other). Hart is widely considered responsible for bringing English-language jurisprudence into the philosophical mainstream. 法律的概念 • Hart's most famous work is The Concept of Law, first published in 1961, and with a second edition (including a new postscript) published posthumously in 1994. The book emerged from a set of lectures that Hart began to deliver in 1952, and it is presaged by his Holmes lecture, Positivism and the Separation of Law and Morals delivered at Harvard Law School. The Concept of Law developed a sophisticated view of legal positivism. Among the many ideas developed in this book are: 規則系統 • A critique of John Austin's theory that law is the command of the sovereign backed by the threat of punishment. • A distinction between primary and secondary legal rules, where a primary rule governs conduct and a secondary rule allows of the creation, alteration, or extinction of primary rules. 次要規則（承認、修改、裁判） • primary rules (rules of conduct) and secondary rules (rules addressed to officials and which set out to affect the operation of primary rules). Secondary rules deal with three problems: first the problem of uncertainty about what the law is (the secondary rule for this dilemma is called the rule of recognition and states the criteria of validity of a law), second the problem of rigidity of rules (which requires rules of change allowing laws to be varied), and third the problem of how to resolve legal disputes (from which rules of adjudication arise). A legal system is "the union of primary and secondary rules." 原始社會和現代社會 • 原始社會只有主要規則，沒有次要規則 • 現代社會人多，所以要有次要規則 法律的內在觀點與外在觀點 • There are two perspectives to this: the external aspect, which is the independently observable fact that people do tend to obey the rule with regularity, and the internal aspect which is the feeling by an individual of being in some sense obligated to follow the rule, otherwise known as the critical reflective attitude. It is from this internal sense that the law acquires its normative quality. 法律與道德 • 法律不等於道德 • 法律會受道德影響 • 最低限度自然法內容 – 人的脆弱性 – 大體上的平等 – 有限的利他主義 – 有限的資源 – 有限的理解和意志力 同性戀除罪化 • As a result of his famous debate with Lord Patrick Devlin on the role of the criminal law in enforcing moral norms, Hart wrote Law, Liberty and Morality (1963) and The Morality of the Criminal Law (1965). Hart's work on the relationship between law and morality had a significant effect on the law in the UK, helping bring about the decriminalization of homosexuality, among other things. 哈特和富勒的論戰 • The Hart-Fuller debate is an exchange between Lon Fuller and H.L.A. Hart published in the Harvard Law Review in 1958 on morality and law, which demonstrated the divide between the positivist and natural law philosophy. Appearing in 1958 in the Harvard Law Review, Hart took the positivist view in arguing that morality and law were separate. Fuller's reply argued for morality as the source of law's binding power. 哈特認為解釋法律必須看文字定義 • Hart uses the problem of "the core and the penumbra" to illustrate the idea that laws must be related to the meaning of the words, not any natural or moral belief. A "core" case would be one that the statute is intended to cover. In the classic example, a statute that bans vehicles from a park obviously is intended to cover cars. A "penumbra" case would be one not considered by the creators of the law, such as an airplane in the example above. A judge interpreting such a law from a positivist viewpoint would look to a definition of the words of the statute. 富勒認為是看立法目的 • Laws are viewed based on purpose, not on meaning of the words. In the vehicle in the park example above, Fuller would say that it would depend on the purpose for banning vehicles from the park. For example, if the purpose were to prevent noise pollution, a bicycle would not be a vehicle for the purposes of the law. Because of this focus on purpose instead of meaning, a judge using a natural law interpretation of statutes relies much more heavily on legislative history. 國際法 • 僅有主要義務規則 • 欠缺次要規則 – 承認、修改、裁判 • 制裁方式 – 國內法靠制裁 – 國際法不靠 主權 • 主權是假定的 – 主權意味著一種獨立性 • 批評國家自限說 – 國家享有主權，國國家自行限制外，不受任何法 律限制） • 國際法不等於道德 • 批評凱爾森的觀點：國際法等於國內法 • 國際法正漸形成次要規則