从法学之法通向司法之法——现代性-后现代范式中法的概念变迁

Concept-Reconstruction of Law in the Perspective of Postmodernism

法学之法与司法之法二元分立是现代性法概念的基本特征。后现代思潮的兴起冲击着现代性的法治主义叙事,推动了法的概念三个基本维度的重建,从而沟通了法学之法与司法之法。在价值层面,破解了法律正义幻相,价值相对主义与道德平等观对法治的普世信念与道德等级意识形成了挑战,制度层面则动摇了规则中心并将"活法"延伸到法律家;在谱系层面,拓展了文化谱系与规则谱系,使法治之法获得全方位生长。现代性-后现代范式中法的概念变迁对中国法治主义话语和制度建构将产生重要影响。

The conception and domain. The upsurge of of law can be constructed in three basic perspectives, i. e. , value, institution postmodernism is pounding the modernistic law doctrine, and thus promoting the reconstruction of law concept. In the aspect of value, the false appearance of law-justice has been destroyed, and the general belief and moral hierarchy have been challenged by the sense of value relativity and the moral equality. At the institutional level, the center of law has been shaken, extending the ＂living-law＂ experts. In respect to domain, it has accomplished great expansion in cultural and regulation aspects, which enables the law to have all around development. The reconstruction of law concept initiated by the postmodemist ideological trend will have an important impact on the discourse in the field of laws as well as the construction of institutions.