国家司法中民间习俗的影响力评析——中国语境中哈特与德沃金之争的反思

作为一种司法改革举措,民间习俗在一些法院中得到运用,民间习俗对国家司法的影响力也就成为需要法理论证的问题。在中国语境中反思哈特与德沃金关于此问题的观点,他们的思想仍有许多启发作用。哈特通过承认规则塑造了习俗的有效性,而德沃金则通过权利原则将习俗引入国家司法。尽管哈特与德沃金意见有所分歧,但他们从不同视角提供了习俗进入司法的实践方法。

Impact of Folk Customs upon National Justice:Reflection of Hart/Dworkin Debate in chinese Context

As a measure for judicial reform, folk customs are being adopted in some Chinese courts,which has inevitably urged us to determine the impact of folk customs upon national justice from the perspective of jurisprudence. Hart and Dworkin’s arguments on this issue, considered in the Chinese context nowadays,are still of enlightenment and reference meanings.Hart thought that rules of recognition was the ultimate one that determined the existence and validity of customs while Dworkin maintained that rights as described by principles were trumps,which the practice and the institutions of the society would be geared to protect.Despite their dispute,Hart and Dworkin both suggested alternative approaches to the judicial practice.