比较法与冲突法关系之重新厘定

Redefining the Relationship between Comparative Law and Conflicts Law

在冲突法的发展中 ,比较法一直扮演着重要角色。它提供了外国法的信息 ,推动着冲突规范的起草并指引冲突规范的适用。但从方法论的角度来看 ,二者又存在着潜在的对抗。随着欧洲一体化进程的加快和基本权利地位的提升 ,它从根本上改变着比较法与冲突法的关系 ,并将其引向了一个更新、更高的平台。相比之下 ,美国冲突法的乡土观念却使得比较法与冲突法间的盟友关系在美国本土变得十分脆弱。只有加强比较研究 ,才能从根本上改变美国冲突法的这种“岛国心态”。

The relationship between comparative law and conflict s law has always been close. The most elementary role of comparative law for confl icts purposes is to supply knowledge about foreign legal system as well as to pr omote the legislative rulemaking and provide guidance for the application of con flict rules. But from a methodological point of view, they are profoundly differ ent disciplines and their relationship may even turn to a radical confrontation. The growing influence of fundamental rights radically changes both disciplines as well as their mutual relationship and orients both of them towards a new, hig her plateau. But the parochialism in American conflicts law has weakened the all ied relationship between comparative law and conflicts law. And the only way to change the insularity of American conflicts law is to strengthen the comparative study.