The Axiology of Legal Positivism——Solutions and Reflections on Institutions of Law
Since the dichotomy of"is"and"should"was put forward by Hume,it has gradually penetrated into the field of research of legal philosophy through Kant's elucidation,and constitutes an implicit clue in the theoretical context of legal positivism.Institutions of Law establishes the theoretical link between fact and norm through the concept of"institutional fact",uses the tool of legal principle to realize the convergence of value and norm,eliminates the background difference be-tween fact and value with the help of the category of practical rationality.All in all,Institutions of law tries to construct a legal interpretation and legal analysis framework that integrate fact,norm and value,and responds to Hume's problem in the sense of axiology with the openness of the legal system.However,the dichotomy between"original fact"and"institutional fact"can-not effectively respond to normative proposition;the concept of"institutional fact"confuses the boundary between norm and value;the rule system implicitly deduces normative connotation from the premise of fact,which violates the"Hume's law".In short,although the theory of Institutions of Law have novel ideas and unique viewpoints,it is still caught in the entanglement of fact,norm and value.
Hume's problemlegal positivisminstitutions of lawnstitutional fact
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