Joseph Raz之法律觀與權威觀之研究

• Main Authors: Chiang, Cheng-Wei, 江承緯
• Other Authors: 謝世民
• Format: Others
• Language: zh-TW
• Published: 2015
• Online Access: http://ndltd.ncl.edu.tw/handle/78760238369438297085

碩士 === 國立中正大學 === 哲學研究所 === 103 === Abstract There are two theses in Joseph Raz’s conception of law: first, there is a conceptual necessary connection between law and morality; second, morality should not be a part of legal validity conditions. As an exclusive positivist, Raz argues that, even the existence and content of law is determined by specific social facts, and the recognition of law does not resort any value arguments, there is still necessary connection between law and morality, and the relation of law and morality is based on the authority of law. The aim of this essay is to point out that, since Raz think that the necessary relation between law and morality associates to the authority of law, and Raz explains the nature and the function of law through his conception of authority, then the reason why Raz supports the sources thesis and his conception of law will differ from the reason why inclusive positivists support their conception of law. I contend that the reason why inclusive positivists support their conception of law is a methodological consideration, whereas Raz supports his conception of law with a substantive consideration. To argue for my position, the first chapter of this essay will illustrate the theoretical disputes in legal philosophy against which Raz’s theory of law is developed, what legal philosophical issues Raz tries to solve, and what the differences between his theory and other schools of legal philosophy are. The second chapter will explain Raz’s conception of authority, i.e. the service conception of authority, and how Raz explains the nature of authority and how a legal system possesses and claims authority. The third chapter will continue the second chapter, by introducing contemporary philosophical debates about the service conception of authority, how theorists disagree about the service conception of authority, and how Raz and other theorists reply to these critics. Finally, the fourth chapter will illuminate how we may defend a Razian account of law, which incorporates values and morality through the authoritative features of law, among other features. And in the end, we will argue that the substantive consideration Raz appeals to supports his conception of law is a teleological reason, based on the normative aspect of law.