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西方历史上的法哲学流派为数不少,自然法和实证法(或法律实证主义)作为其中最重要的两支(且至今活跃),有其独特的思潮形式和代表人物,奉行各自的思想史逻辑,在学术起点、论证方式、思想视野上亦可谓迥异。自然法经由“古典—中世纪—近现代”之路径,始终坚守法外自然和道德之于法律的必然关联;实证法则诞生于“自然法”之母体,固执于法律的独立逻辑形式,其作为社会事实不必然与道德相关。现代以来,经由德沃金等人的理论阐释使其两者重新纠缠在一起,从而使理论家们小心翼翼地又经营起各自的新争端和新回应。通过思想史考察的方式,旨在尝试理清这一庞大理论的思想来源及论证过程,并作问题比较视野上的处理,从而试图在法哲学视阈下重新审视自然法与实证法。
As the most important two (and still active) natural law and positivism (or legal positivism), there are many schools of legal philosophy in the history of the West. They have their unique forms of thought and representative and pursue their own history of thoughts Logic, in the academic starting point, argumentation, ideological and vision can be described as very different. The natural law always sticks to the inevitable connection between extradition and morality to law through the path of “classical-medieval-modern”; the positivist law was born in the mother body of “natural law” and is stuck in the independent logical form of law , Which is not necessarily related to morality as a social fact. Since modern times, the theory has been re-entangled by Dworkin et al., So that the theorists carefully operated their respective new disputes and new responses. Through the way of the study of the history of thoughts, this paper aims at trying to sort out the origin and the process of the ideological origins of this huge theory and to deal with it in the field of comparative perspectives, so as to re-examine the natural law and the positive law from the perspective of jurisprudence.