法律、道德與自然必然性：論哈特的自然法最低限度內容
Journal
政治與社會哲學評論
Journal Issue
64
Pages
1-47
Date Issued
2018
Author(s)
Abstract
The positivist separation thesis that there is no necessary connection between law and morality consists of three sub-theses: they are the separations of content, validity, and justification. Contemporary legal positivists usually defend the first two but have divergent opinions on the third. Hart insists that the existence of law and legal systems does not necessarily depend on moral justification, whereas MacCormick and Raz endorse the opposite view. Likewise, non-positivists all repudiate these sub-theses from a ＂thick＂ moral viewpoint of law. Nevertheless, critics rarely pay attention to Hart's most important argument in defending the justification separation thesis. It is the argument of the minimum content of natural law. I argue that Hart's account is based on the natural fact argument and the moral fallibility argument. The first is not, as he defends it, a descriptive statement, but a prescriptive one. It also violates ＂the naturalistic fallacy＂ he uses to criticize classical natural law doctrine. The second is not a morally neutral argument to describe the existence of an evil legal system. I shall argue that the minimum content of natural law is premised on the moral justification of ＂natural necessity＂.
SDGs
Publisher
中央研究院人文社會科學研究中心政治思想研究專題中心
Type
journal article