法理学还要与部门法学疏离多久——以桑本谦先生的法律解释理论为分析视角

The Alienation between Jurisprudence and Department Law Study:From the Aspect of Sang Benqian' s Theory of Legal Interpretation

传统的建构型法律解释学和桑本谦先生所主张的解构型法律解释学都面临困境,而从部门法制度和部门法实践的角度来看,法律解释学并非无药可救。法律解释学的发展必然是和法律制度的发展、部门法实践的发展、法律共同体的发展乃至法治的发展联系在一起的。抽象的法理学建构和抽象的法理学解构都具有局限性。法理学视野下法律解释学所面临的困境,其实质是中国法理学所面临的困境,而造成这种困境的原因就在于法理学一直以来对部门法学所采取的疏离态度。

Both the traditional constructive legal interpretation and deconstructive legal interpretation proposed by Sang Benqian are confronted with difficulties which can be resolved through department law system and department law practice. Legal interpretation develops with the development of legal systems, department law practice, the legal community as well as the rule of law. The effects of abstract construction and abstract deconstruction are limited. As a matter of fact, the difficulties faced by the legal interpretation study from the perspective of jurisprudence are those faced by Chinese jurisprudence, and the reasons for this predicament lies in the alienation between jurisprudence and department law study.