論法律與道德的關係：霍布斯之「自然法與實證法相互包含」論題(The Mutual-containment-thesis)

Abstract

雖然霍布斯的政治思想以其國家學說著名，然而法律卻始終是他理論體系中的重要主題。我們應如何理解霍布斯的法理論，以及對霍布斯而言，（實證）法律與道德的關聯為何？便是這篇文章致力探討的主題。本文首先指出，在法實證主義者與自然法思想家這樣的二分法中，霍布斯的論述似乎踩在一個模稜兩可的位置，一方面霍布斯主張法律即為主權者命令，因此霍布斯式法理論與後來奧斯丁的命令論連結起來，也導致後來哈特的批判，但另一方面，霍布斯似乎又主張主權者命令應當受到自然法的規約與限制，因此似乎傾向自然法傳統，而本篇文章藉由霍布斯對自然法與實證法之間關係之探討要指出的是：這兩種理論與傳統均無法涵蓋霍布斯的法理論。

This essay explores Hobbes`s account of the mutual-containment thesis, which has been a puzzle for Hobbes scholars. Specifically, it investigates Hobbes`s account of the relationship between positive and natural law, i.e., law and morality. While the core purpose of Hobbes`s political thought appears to justify an absolute power, and hence Hobbes was often seen as a legal positivist (akin to John Austin`s command theory), his account of laws of nature (supposed to impose restrictions upon political authority) has been gaining attention in recent years. Additionally, I argue that Hobbes`s account of laws of nature is neither ＂self-effacing＂, as some have argued, nor a ＂façade of absolutism＂. While Hobbes`s conception of laws of nature as equity does not impose limits upon sovereign power as traditional natural laws did, it has function through rulings of the subordinate Judge. I indicate that Hobbes`s accounts of the role and importance of the Judge`s interpretation, and how the law is verified by the subordinate Judge, show that his legal theory has been oversimplified by both the legal positivist and natural law interpretations. I conclude that neither of these contrasting theories is able to tell the whole story of Hobbes`s legal theory.