HART, RAZ AND CONCEPT OF LEGAL SYSTEM外文翻译.pdf

SEAN COYLE
HART, RAZ AND THE CONCEPT OF A LEGAL SYSTEM
(Accepted 10 September 2001)
ABSTRACT. An underpinning assumption of modern legal positivism is that the
question of how legal standards differ from normative standards in other spheres
of human thought is resolved via the concept of a legal system and the notion
of internal logic, through use of contextual definition. This approach is seen to
lead to an untenable form of structuralism altogether at odds with the positivist’s
intentions. An alternative strategy is offered which allows the positivists to retain
their deepest insights, though at a price.
KEY WORDS: institutional theory, internal logic, legal system, positivism,
semantics, structuralism
I. INTRODUCTION
One central question for legal positivists is: how does law differ
in essential respects from political standards on the one hand, and
morality on the other? This question has sometimes (and unwisely)
been seen by some critical theorists as forcing legal positivism
into a battle on two fronts: though the positivist mitted to
maintaining some conceptual distance between law and the kind
of objective moral standards which often form the basis of natural
law claims,1 this cannot – if positivism is sustainable – lead to
a situation in which the criteria employed by judges in reaching
decisions at law embody no more than the substantive political
leanings of the collectivity to which the law applies. Though the
picture this criticism raises is perhaps naïve in its assumption of
a kind of equidistance between positivism and its objectivist and
subjectivist rivals, the underlying point it makes might neverthe-
less be troubling: in what sense is law, according to the positivists,
1 The picture of natural law which this dilemma poses is, of course, question-
able on independent grounds. I do not however propose to go into this question in
the present paper.
Law and Philosophy 21: 275–304, 2002.
© Kluwer Law International