论实证法的道德困境

法律与道德的关系问题是贯穿法学始终的一个经典问题。关于这二者关系的说法可谓是林林总总，莫衷一是。德国法学家耶林亦曾经将之比喻为法学中的好望角，一凉涛骇浪，难以驾驭”。哈佛大学法学院的庞德院长阐述了他关于法律与道德的看法，无疑是一次跨越比利牛斯山般的尝试。如何处理合法的道德恶行？又如何处理从实在法看是非法的、但在道德上却是可以证成的行为？对此．哲学界和法学界对道德与法律的关系问题一直争论不休，故此，很有必要在剖析实证法的道德困境之基础上，探讨道德理念对实证法的重塑。

On Ethical Dilemma of Positive Law

The relationship between law and ethics is a classic problem throughout the law. Both the west and the east have their own ideas and practice, and could not have unified opinion. Just like the monster Sphinx, it is unpredictable. Germany lawyer Thering have considered it as a legal ＂Cape of Good Hope＂, and Roscoe Pound, the dean of School of Law of Harvard University, expounds his views about law and morality, which is undoubtedly a try of crossing Pyrenean. How to deal with the legal morality wickedness？ And how to deal with the behavior which is illegal from the perspective of positive law and can be justified in ethics？ The author here tries to show himself some pure thinking on the issue.