Hart "rule Of Law, Said," Analysis,

Herbert Lionel Adolphus Hart is a British jurists,the founder of modern positivism and analytical jurisprudence. The book written by him and published in1961 is the symbol of the origin of the modern positivism and analytical jurisprudence. During the controversy with scholars of the natural law school. Hart developed Austin's analysis of law.He advanced the concept of"rule of law"replacing"the order of the sovereign"declared by Austin.The theory of rule of law is a kind of combinations of primary rules and secondary rules,which put forth during the controversy with Fuller, scholar of the natural law school, after World war. He argued consistently that law should separate from morality,however,to some extent.there are links,that is, minimum content of natural law.The innovation and difficulties in this thesis lies in we should take dialectical analysis of the attitude to Hart's linguistic turn in law: absorb the essence of the theory of Hart for our country's legal system ,at the same time come up with a theory suitable for the situation of our country. And most of the major scholars gave a brief introduction of Hart's major work,however,there are less works and papers about analyzing and commenting on it.The key point of this thesis is pointing out the contribution of the jurisprudence as well as for China's construction of referential significance to the rule of law. This paper will take a genealogical research method,that is in the background of traditional of analyze positivist jurisprudence and based on Hart's law of rule,then analyzing practical significance.The outline of this thesis is as follows: explained the position he insisted in, that is separation of law and morality. Owing to Austin's mistake at legal system and its inherent structure of the existence of a significant, if Hart didn't correct it he would not complete the strong response. Therefore,Hart also showed some flexibility. In his view, t law related to morality,but there is no necessary relation between them which is different from Austin's ideas. He also argued that there were existences of a society constitute a legal and ethical rules of conduct of common factors, namely, "natural law, a minimum level of content". The second chapter criticized Austin's Legal Order Theory mainly. In fact, he still insisted on the position of analytical jurisprudence. Different from Austin's Legal Order Theory which made up of"sovereign-order-sanctions",Hart advocated the flaws in Austin's theory and brought forward his"rule of law". The third chapter of this thesis aims at introducing the core idea of"rule of law"from four aspects: internal aspect of rules,architecture,recognize the rules and open structure. In the last chapter, Through the following four aspects, namely the applications of linguistic philosophy method, new angle of internal issue, controversy arousing-response and advocating to rule the country by law, this thesis made a deeply research about the significant academic contribution of the theory and the revelatory meaning to China's legal system construction.