法与道德关系模式的历史反思

西方学者在法与道德关系的争论中提出了许多模式 ,著名的有康德模式、富勒模式、哈特模式等。这些模式虽然在某种程度上能揭示法与道德的关系 ,但都不够理想。法和道德都有观念、规范或制度、秩序三个层次 ,二者的观念层次是相通的和深藏于现在一般所说的价值观念之中。另外 ,在秩序层次二者也是很难区分的 ,因为它都落实在人的行为中 ,而一个行为 ,如果符合秩序的要求或构成社会秩序的话 ,可能同时具有法律意义和道德意义。这样 ,法与道德的区别主要存在于规范或制度层次。

The Historical Thinking About the Relation of Law and Morality

On the basis of introduction and analysis of the patterns put forth by some western scholars in the controversy on the relations between law and morality, the author put forward a new pattern that law and morality each consists of three levels: idea, norm or institution and order. Law and morality share the same ideas that are deeply rooted in such ideas of value, as we generally know today. As to the level of order, it is also difficult to differentiate law from morality because the order forms by means of the actions of man, an action probably possesses legal significance and moral significance concurrently if it accords with the order or institutes the social order. So the author concludes that the difference between law and morality lies only in the level of norm and institution.