自然法发展的现代理路:作为正义的法律

传统分析法理学主要关涉到两个基本命题:第一是法的本质是什么;第二是法与道德的关系问题。而法理学经久不衰的问题之一是法律和道德之间是否具有直接的关系。坚信法律与道德之间没有直接联系的这些人,我们一般称之为"法律实证主义";而坚持认为法律与道德具有直接的联系的这些人,我们通常标示为"自然法学家"。在法律理论上的"自然法",按其发展路径理解它的意涵为:(1)有某种客观的道德真理;(2)这些道德真理至少部分地构成了法律作为真理的前提条件。

MODERN PATH OF NATURAL LAW: LAW AS JUSTICE

The traditional analytical jurisprudence mainly involved in two basic questions:First,What is the nature of law?This question can be seen as being actually two questions in one,that is:what is the law,or what constitutes a good law.Second,there is a relationship between law and morality.Hence,a perennial question of jurisprudence has been whether there is a relationship between law and morality.Those who believe that there is no such relationship are known as"legal positivists",while those who hold that such relationship exists are usually tagged with the label"natural lawyers".By"natural law"in legal theory,I understand one to mean the claims that:(1)there are objective moral truths;and(2)those moral truths are at least partly constitutive of the truth conditions for propositions of law.I have called the first claim the metaethical thesis of natural law and the second claim the relational thesis of natural law.In this essay I am concerned solely with the relational thesis.