「政策法學」的破與立－兼評J. Van Doran與C. J. Roederer 「Mcdougal-Lasswell Policy Science: Death and Transfiguration」一文

Abstract

＂Policy-oriented Jurisprudence＂ incorporates the ＂Policy-oriented Approach＂ into the methodology of jurisprudence. Though the school of thought was advocated in the United States by Myres S. McDougal and Harold D. Lasswell in the 1940's, in terms of the development of jurisprudence, law scholars and practitioners had started to participate in legislation and policy-related activities from as early as the 16th and the 17^(th) centuries. Such academic inquiries later came to be known as ＂jurisprudence of legal policy＂ or ＂legislative research＂. The legislative and policy-study roots of jurisprudence, however, were cut loose in the face of the Scottish Enlightenment in the late 18^(th) century. In view of the rise of Legal Positivism, jurists intended to establish an independent science, limiting the scope to interpretation, analyzing, and ordering. This approach later became the maintream in interpretative jurisprudence and analytical jurisprudence, with jurists successfully shifting the focus from the design of a legislative research to a jurisprudence without legislation. The ＂policy-oriented jurisprudence＂ proposed by McDougal and Lasswell believed that law stems from the authoritative decision-making process of a community that looks to formulate the right policy. And the true purpose of legal training is to train a group of policymakers in both planning and implementation, the ultimate goal of which is achieving democratic values. Despite having brought the policy-oriented approach into jurisprudence, their work received little attention, and has merely developed into the ＂New Haven school＂ in the field of international law. Recently, Jack van Doran and Christopher J. Roederer have published a paper that offers a critique of this school of thought and gives reasons for its decline. The writer in principle agrees with the academic viewpoint put forward by McDougal and Lasswell’s policy-oriented jurisprudence, that the fields of public administration and administrative law should combine in investigating phenomenon in administration, hence the title of this study ＂On the Innovativeness of ‘Policyoriented Jurisprudence’＂ to open up further discussion and analysis. Firstly, the origin of this study will be discussed, then comes a description of the basic tenets of ＂policyoriented jurisprudence,＂ after which the viewpoints of van Doran and Roederer and other academics will be given together with an analysis of each of them, and lastly a conclusion on how to establish a policy-oriented jurisprudence.