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面对“合法的道德恶行”这一法律与道德之间的冲突难题,自然法学派与实证法学派都提出了自己的化解之道。自然法学派主张通过宣布合法的恶性因违背基本道德原则而无效来否定其法律性,实证法学派则主张在功利主义思想的理论支撑下通过制定溯及既往的新法律来作为惩治那些所谓“合法恶行”的新的效力规范依据。两学派方法各异,结果类似,可谓殊途同归。由于实证法学派的处理路径具有理论支撑较为完善、处理程序较为严谨、后续依据较为健全、实践操作较为可行等多个优点,因此实证法学派的观点与做法值得建议采纳。
In the face of the conflict between law and morality such as “lawful moral evil”, natural law schools and positive law schools have put forward their own solutions. The natural law school advocates denying its legal nature by declaring that the lawful viciousness is invalid because of violating the basic moral principles. The positive law school advocates using the new law retroactively as the punishment of those so-called “ Legal evil ”of the new normative basis of effectiveness. Two schools of different methods, the results are similar, can be described as the same thing. Because the processing route of the positive law school has many advantages such as perfect theoretical support, rigorous processing procedure, more sound follow-up evidence and practical operation, the viewpoints and practices of the positive school of law should be recommended for adoption.