法源话语及对法治的意义

The Discourse of Legal Source and Its Significance to Rule of Law

实现法治不仅需要法律,还需要法源话语支持法治思维。对法源话语的概括可从法学、法律和法治三个维度进行。从我国现有的法源语用观察,法学角度的法源基本是从司法角度界定法律,目的是在结合论中嵌入逻辑因素,进而较为准确地描述法律实施。作为法律话语的法源,是从立法角度统一法律形式,旨在将其他社会规范及价值等,以认可的方式推定为法。统一法源虽能保障法之权威,但注定是难以完成的任务。在辩思盛行的中国,需要把法源纳入法治话语系统,进而运用法源思维及法律方法塑造法治之法。作为法学话语的法律渊源,为法治思维的塑造提供了思路;作为法律话语的法源,为法治确定了法的范围;作为法治话语的法源,为重塑法治之法提供了思维及方法。

Achieving the rule of law requires not only laws,but also the source of law supporting the rule of law thinking. The understanding of the source of law can be developed in three dimensions:jurisprudence,law,and rule of law. According to the present pragmatic of legal source,the source of law as a jurisprudential discourse defines law from a judicial perspective,aiming to embed logical elements in the theory of union and thus to describe the implementation of law more accurately. The source of law as a legal discourse is the unification of legal forms from a legislative perspective,aiming to presume other social norms and values,etc.,as law in a recognized manner. Although the unification of legal sources can guarantee the authority of the law,it is destined to be a difficult task to accomplish. In China,where dialectical thinking is prevalent,there is need to use legal source as the discourse of the rule of law,and then to use legal source thinking and legal methods to shape the law of the rule of law. The source of law as the discourse of jurisprudence provides ideas for shaping the thinking of rule of law;the source of law as the discourse of law defines the scope of law for rule of law;the source of law as the discourse of rule of law provides thinking and methods for reshaping the law of rule of law.