哈特如何推导出“规则”及反思

How Hart Derived the “Rules” and Reflections

摘要: 哈特重述了奥斯丁的法律命令说，对以“强制”为中心的理论展开了猛烈批判，并提出一套“规则”理论进行代替，并且在论证过程中提出“内在面向”、“内在观点”、“承认规则”、“初级规则”等重要概念。但哈特是如何一步步推导出规则的呢？如何解释现实情况下人们对初级规则“不接受”但仍产生义务的情形？哈特用同时具备行为一致性和内在观点的“规则”代替“强制”解释了法律的规范性。本文认为其所指的“规则”带有社会实践的属性，只有具有社会实践属性的“承认规则”才需要满足“内在观点”的要求，人们需要“服从”没有社会实践基础的初级规则，其背后的原因是“承认规则”被官员所“接受”。

Abstract: Hart recapitulates Austin’s theory of legal commands, and launches a fierce criticism of the theory centered on “coercion”, and proposes a set of “rule” theory instead. And in the process of argumentation, important concepts such as “internal aspect of rules”, “internal point of view”, “a rule of recognition” and “primary rules” are introduced. But how did Hart derive the rules step by step? How to explain the realities of situations in which people “do not accept” primary rules, but still incur obligations? Instead of “coercion”, Hart explains the normativity of law in terms of “rules”, which have both behavioural consistency and the internal aspect of rules. The paper argues that the “rules” to which it refers have the attributes of social practices. Only the “rules of recognition”, which have the attributes of social practice, needs to fulfill the requirements of the “internal point of view”. The reason behind people’s need to “obey” primary rules that have no basis in social practice is that a rule of recognition is "accepted" by officials.