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The Boundaries Of Law And Morals

Posted on:2010-12-11Degree:DoctorType:Dissertation
Country:ChinaCandidate:Z W WuFull Text:PDF
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What is law? What is the basis for the validity of law? What's the relationship between law and morality? Can morality inspect the law in a legal way? These questions,especially the relationship between law and morality,have troubled people for thousands of years.From the philosophy in Ancient Greece and Rome to theology in the Middle Age,until modern times,the opinion which were derived from natural law prevailed that the law and morality were closely interweaved,and that the generation,existence and development of the law was based upon morality.By the late modern times,Jeremy Bentham,the famous British jurist and philosopher,proposed the concept of neutral law language and presented to the world the value-non-inference theory for the first time.Though his concept of separating law from morality is by no means systematic or comprehensive,but it was the first call for the scientific and independent law.At the beginning of 1800s,British jurist John Austin first proposed the concept of complete separation of law and morality in his book Lectures on Jurisprudence or the Philosophy of Positive Law.Besides,he carried out comprehensive and systematic discussion on such questions as"What is law?""What is the basis for the validity of law?"and"Why should law be completely separated for morality?"John Austin opened the way to traditional empirical jurisprudence,which coexisted and prevailed with natural jurisprudence from the inception of the 19th century to middle 20th century.Nevertheless,after the Neuremberg trial and Radbruch's jurisprudential turn,the empirical jurisprudence become the embodiment of the evil and was criticized severely.After a short time,Hart,the most reputed jurist in the English world,published his master piece The Concept of Law in 1961,in which he reinterpreted the relationship between law and morality.Empirical as his stance was,Hart did not agree with the complete separation between law and morality,holding that the two are occasionally linked,though not absolutely connected.He put forward the concept of a"minimum content of natural law".He abandoned the prescriptive method of defining the sphere of law and adopted an analytic and descriptive method used in linguistics. By answering and discussing those questions aroused by natural jurisprudence in an all-around way,he criticized and surpassed the outdated traditional empirical jurisprudence and established a new analytic empirical jurisprudence in which law and morality are relatively separated.For more than half a century,as to Hart's comparative boundaries law view of analytical positivism,there are plenty of research and writing in western theoretical field.A lot of scholars support his ideas,such as Karman's"Negative and Positive Rechtspositivismus",Laz's"Concept of Legal System"and"Practical Rationality and Norms",McCormick"Legal Positivism:System Theory",etc.Meanwhile,there are some criticisms,such as Lon L.Fuller's"the Morality of Law", Dworkin's"Law's Empire"and"Taking Rights Seriously",etc. Domestic thoughts on Hart increase since 1999,among which there are some representative works,such as Zhan Hongguo's"Hart's Legal Positivism—from the Perspective of Psychological Relationship"and"Utilitarianism Liberty Idea of Legal Positivism:from Bentham to Hart"and"Observing Phenomenon of Laws Through the Language:Hart and Ordinary Language Analytic Philosophy",etc.However,seen from existing domestic literatures,the studies on Hart thoughts are still introductive or descriptive instead of theoretical analysis of Hart,lacking deep and detailed research on thoughts of Hart,especially his thoughts on ethics.In the few literatures studying Hart's law ethics,most discussions carried on from perspectives of several controversies,Hart's language analysis method and rule of law. There is no comprehensive and thorough study on Hart's ethics of law from the perspective of"the law and the morals".Therefore, the author tries to discuss Hart's ethics of law from this point.This dissertation is divided into eight parts,including introduction,main body and conclusion.The six chapters expound Hart's"law and moral boundaries(boundaries)"around the dividing line of law and the morals.It also discusses the problems of"why","what"(the boundaries of law and morals) and"how to do after the research".The first chapter discusses the theoretical boundaries of law ethics.It elaborates the concept of law ethics,research subject and the attributes of the subject,and it introduces the multi-dimension of this research.The second chapter deals with the base and subject of Hart's ethics.Besides the introduction of Hart's life and main works,this part has made a detailed analysis and discussion on the historical background and origin of Hart's ethics,because no thought just happens accidentally, but there are profound practical material conditions which are deeply rooted in the contemporary social environment.Meanwhile, Hart's thoughts are supported by many theories such as utilitarianism,positive philosophy,etc.The two chapters and introduction answer the questions of"why".The key part of this dissertation is the third,fourth and fifth chapters.The three parts elaborates on the purpose,method and limitation of Hart's legal and ethical boundaries, highlighting Hart's separation of morality and law.The third chapter deals with the purpose of boundaries.Based on the analysis of need for the rationality of legal form,it emphasizes the need of Hart's boundaries,that is,for the independence and regulation of legal form.Practical rationality is emphasis of inner requirement of law,making it realistically operative and unity.Since only a formal name for law is not enough,if there is too much ambiguity,the legal justice is the need to make the inherent character of laws objective and fair,giving rid of subjective randomness.The fourth chapter elaborates on the approach of Hart's boundaries of law and morals,including language analysis method,the method to exceed the traditional positivism and method of academic debate.Language analysis method mainly introduces Hart's succession of some scholar's language analysis method such as Freg,Russel and Wittgenstein,and Austin, Bentham' legal language,pointing out the reason of Hart's method adopted in the boundaries.Only the neutral description method(without value judgment) can conform to Hart's thoughts on the boundaries.To expound on the method of transcending traditional positivism and the method of academic debate is to give prominence to Hart's sublation of traditional law positivism and his response and disproval to natural legal thoughts,in order to establish a new analytical positivist jurisprudence,because only in criticism can it be raised,and only in argument can we obtain the new theory.When discussing Hart's boundaries of law and morals,the fifth chapter elaborates the absoluteness and relativity of the contact between legal and moral,pointing out the historical background of development of Hart's boundaries from the absoluteness to relativity,and the reason for Hart's proposition of law and moral's"distinguishing suitable contact".Then this chapter emphasizes the requirement for the relativity of Hart's boundaries,in order to improve that his boundaries is relative,not absolute.The third,fourth and fifth chapters give a comprehensive explanation of Hart's ethical law thoughts on boundaries method of law and morals,thus answering the question of"what the proposition of boundaries method of law and morals is".The last chapter is about the practical enlightenment of Hart's legal thoughts.This part clarifies that through the above discussion about Hart's relative boundaries thoughts,we can set up the concept of"supremacy of law".The concept of"managing state affairs according to law"contains humanist value, therefore,insisting on the supremacy of law in some sense is human-oriented.Secondly,Hart's thoughts about boundaries tells us that we should give attention to"governing the country with law and moral"and"emphasizing both moral and law"when adhering to"supremacy of law"and"managing state affairs according to law",in order to overcome the moral defects,and to make the law and moral supplement each other.At last,based on Hart's proposition,we should establishment correct boundary consciousness of law and morals in theory and practice,and make law and moral each show their own ability.This part answers the question of"how to do after the research".This dissertation adopts both the methods of description and comparison.It inspects into both the history of problems and the reality of problems.It pays attention to the discussion of the identity and chooses the fitting method.It not only has theoretical discussion,but also makes realistic enlightenment. The author tries to make a comprehensive and systematic elaboration to Hart's law ethical thoughts on the boundaries of law and morals,in order to deliver a qualified answer sheet to his loyal pursuit of legal and ethical business.From the perspectives of the just requirement for formal rationality and practical rationality,this dissertation seeks reasons for Hart's proposition of relative boundaries of law and morals,and puts forward the humanist thoughts of"supremacy of law"and"emphasizing both moral and law"as the practical enlightenment of Hart's thoughts.It systematically discusses the origin and realistic conditions of Hart's law ethical thoughts,and summarizes the methods Hart adopted and the limitation of the boundaries.The study will have certain inspirations to further enrich researches on Hart and to deepen the theory and practice of"managing state affairs according to law"and"governing the country with law and moral".
Keywords/Search Tags:Ethics of law, Law, Morals, Boundary, People oriented
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