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我们在讨论法律的道德性问题时会忽略一部分规则而集中于另一部分规则。我们会认为一部分法律规则与道德讨论没有关系,它们不能从道德上进行评价,因此是道德无涉的。本文以国际法为例,讨论了这种现象的缘起和影响。本文认为,法律规则的道德无涉是社会建构的结果。国际法学人团体在与大众的互动过程中通过知识手段将规则技术化,限制专业团体与大众的互动。建构的道德无涉遮蔽了相关规则的道德立场,影响了大众对法律规则的道德性乃至合法性的评价。
When we discuss the ethical issues of law, we ignore a part of the rules and focus on the other part of the rules. We would think that part of the legal rules have nothing to do with ethical discussion. They can not be ethically evaluated and therefore are morally unrelated. This article takes international law as an example to discuss the origin and influence of this phenomenon. This article argues that the morality of legal rules is the result of social construction. During the process of interaction with the public, the international legal scholarship group has standardized the rules by means of knowledge and restricted the interaction between professional groups and the general public. The morality of construction has not covered the moral position of the relevant rules, and has affected the general public’s evaluation of the morality and even the legitimacy of legal rules.