论制裁在法律概念中的地位演变

我国现行制裁理念重强制,忽视认同,容易引起社会对立,也不利于法律的执行。奥斯丁和凯尔森主张法律的强制性,哈特却主张把制裁排除在法律概念之外,否定法律的强制性,强调法律的认同性。法律制裁则经历了作为法律概念重要组成部分到被排除法律概念之外的演变过程,这个演变过程体现了人们对制裁在法律概念中地位的深化认识。文章认为强制与认同都是法律概念的两个基本要素,吸纳认同性将促进我国法律制裁理念的更新。

Discuss on the Changing of Status of Sanctions in the Legal Concept

Our country＇s current concept of sanctions, which pay more attention to enforcement but less to recognition, would be declined to indicate social conflict and easy to made difficulties in law enforcement. The author analyzes Austin and Kelsen＇s theory of law＇s enforcement and Hart＇s opinion that sanctions should be excluded from the concept of law and thus he deny the enforcement of law but emphasize the recognition of law. Legal sanctions experienced the change from being an important part of legal concepts to being excluded from the legal concept, which reflects the further understanding of sanctions in legal concept. The author takes the point that enforcement and recognition are both the elements of the concept of law, accept of recognition will lead to the update of law sanction in our country＇s legal system.