论共同理性视域下的自然法学与分析法学——兼论法学比较研究的视角问题

Natural Law and Analytical-positivist Jurisprudence in the View of Common-reason——Concurrently On Problems of the Visual Angle of Comparative Study of Law

在过于浓厚的"辨异"语境下,国内法学界大都认可这样一种判断:西方自然法学和分析法学的学说主张是彼此对立、"水火不容"的。其实,此二学派在法律基本精神、思维方式等许多重要问题上存在着广泛而深刻的相同相通相似之处。因此,判定二者"水火不容"显然是偏颇的,它是国内法学比较研究忽视"求同"、片面"辨异"的产物。由此,应该对国内法学比较研究这种畸轻畸重的视角问题作出反思与批判,从而突显法学比较的"求同"维度。

In an excessively thick context of ＂studying differences＂, there is an agreement in the domestic field of law that Natural law and Analytical - positivist Jurisprudence are like oil and vinegar. With seeking the common points between the two schools, this article demonstrates that there is extensive and profound homology or resemblance between them in many important questions. So, thinking ＂they are like oil and vinegar＂ apparently is inaccurate, it is the outcome of ignoring ＂seeking common points＂ and unilateral ＂studying differences＂ by the comparative study of domestic law. Seizing this moment, this article reflects and animadvert more on the question of visual angle of the domestic comparative law, and elucidates doctrinally that the study of ＂seeking common points＂ could not be ignored by the comparative study of law.