法律的驯化与内生性规则  

Domestication of Law and Internal——Generated Rule

作　　者：支振锋[1] 

机构地区：[1]中国社会科学院法学研究所助理研究员

出　　处：《法学研究》2009年第2期135-149,共15页Chinese Journal of Law

基　　金：中国社会科学院重点课题“法的规范性与权威-法律实证主义的新发展”(课题编号:YZDN)

摘　　要：法律应该被遵守。但遵守既可能来自守法者对义务的自觉,也可能来自守法者所感受到的制裁威胁。当守法主要源于威胁时,社会就会被撕裂为施法者与守法者两个相互对抗的阵营,法律也会成为暴政与奴役的工具。结合传统中国的某些思想资源、哈特的规则理论以及哈贝马斯的沟通行为理论,尝试弥合在守法行为中从"被威胁"到"有义务"之间的鸿沟,是内生性规则的理论诉求。Backed by the coercible force of the state, the law sets the standards of actions and sanctions unlawful actions, so it makes many of human actions not optional but obligated. Whether because of sanction or threat of sanction, or because of obligation, even because of convenience of action, law should be abided by. However, this abidance may not only result from one＇s consciousness to his obligation, but also from the threat he feels. When the obedience to law is mainly due to threat, society will be torn into two oppositional camps, and the law will become the instrument of tyranny and enslavement. It will be a misery world that we should do our best to avoid. As H. L. A. Hart has found in his book, the existence of modern legal system per se is a risk, that is to say, the centralized power can be inflicted on a lot of people against their will unparallelly in history. Therefore, the most important task for theorists is how to find a way to keep a desirable balance between the social order and citizens＇ freedom. This is a task of domesticating law. Through reviewing Hart＇s rule theory by comparison with Austin＇s command theory, this article accounts for why a rule can generate real obligations but an order or command cannot. The secret lies in the fact that a rule has its internal point. That is to say, if we have the reflective internal attitudes to the rule, our conformance to the law will imply the acceptance of law, not obedience merely. Legal phenomena have three typical characteristics, i.e. normative, coercible and official. The normative character shows that law is a body consisting of rules, and it is the fundamental element of law. What Hart had done is to whittle the coercion of law, which is the first step of domesticating law, but he failed to complete the whole enterprise. To finish this work, this article presents the internal--generated rule theory, attempting to bridge the gap between ＂being threatened＂ and ＂having the obligation＂. Namely, the mission of this article is

关 键 词：法律强制 法律遵守 内生性规则 

分 类 号：D90[政治法律—法学理论]