摘要:Now it is perhaps the positivist’s turn to beat a hasty retreat. The positivist may now want to retract the equation of social disapproval with “sanction,” for fear of including international law under the term “law.” Instead, the positivist will retreat to the original position that physical or even violent enforcement is necessary to make law “law,” and hence international law is not “law.” We may, however, suspect that the positivist is reshaping definitions in order to exclude the international-law case, rather than to arrive at a general definition of law. Consistent with this position, the positivist will have to argue that any legal system in which social disapproval functions as the sole sanction ( for example, in a peaceful tribal society) does not have “law.” “Law” is present only when, in addition to social disapproval, there is physical coercion stemming from the sovereign power of the state. But what if there is no need for this physical coercion? The positivist must then conclude that there is no law.
现在或许该轮到实证主义法学派来进行反驳了。 现在实证法学者可能想要否认社会反对等同于“制裁”了,惟恐把国际法囊括进“法律”这个术语中。相反,实证法学者撤消了他们先前的观点,即认为使法律成为“法律”强制执行是必要的,因此国际法不是“法”。但是我们会提出怀疑,实证法学者们是为排除国际法而非为了对法律下一个普遍的定义而重新界定概念。与此立场相一致,实证法学者不得不争辩,把社会反对作为唯一制裁方式(例如在一个和平的部落群体中)的任何法律制度都没有“法律”。只有在除了社会反对外存在源自主权国家权力的强制力时,“法律”才是存在的。但如果没有必要有这种强制力又如何呢?实证法学者肯定会得出不存在法律的结论。
Such a position would be difficult to defend, for if there is a society where people are so law-abiding that they get along only with the social–disapproval sanction, that society manifests a rather good case of “law.” It is strange to insist that, for there to be law, physical coercion must also be used even if there is no need for it.