论文部分内容阅读
作为分析实证法学派的奠基人,约翰·奥斯丁主张将法理学的对象限定在实在法的范围之内,倡导分析性的研究策略,以此构建一门独立的法律科学。根据他的讲义内容整理的《法理学的范围》一书传递了他主要的法律思想。尽管奥斯丁理论的不完备性招致了后人的诸多质疑和批判,但是他在法律研究中的去道德化思路,对法律形式和权威结构中强制要素的侧重以及对功利原则政治作用的推崇,在当下仍然具有理论启发价值。从奥斯丁理论中理解、体会和反思他的问题意识和政治关怀,将对我们检讨当下的法治实践颇有助益。
As the founder of the analysis of the school of positive law, John Austin advocated the establishment of an independent legal science by limiting the object of jurisprudence to the scope of substantive law and advocating analytical research strategies. His book, The Scope of Jurisprudence, organized according to his handouts, conveys his main idea of law. Although the incompleteness of Austin’s theory has led to many questions and criticisms of his descendants, his de-moralization in legal research, his emphasis on the mandatory elements in legal forms and authoritative structures, and his advocacy of the political role of utilitarian principles , Still has theoretical inspiration value in the moment. To understand, reflect and reflect on his question awareness and political concern from Austin’s theory will be very helpful to our review of the current practice of the rule of law.