法学实证主义初探

A Preliminary Study on Jurisprudential Positivism

19世纪初至上半叶,由历史法学派开启,经概念法学的铺垫,到以温特沙伊德为代表的学说汇纂学派,概念与体系性建构的法学达致巅峰,法学实证主义的观念在其中发端和成长。法学实证主义与法律实证主义等其他实证主义类型有所区别。究其实质,法学实证主义表达了两个相互关联的基本命题一是法学的科学性,一是法学的自主性。探讨法学实证主义的目的就在于厘定和评价这两个命题,呈现它们的价值和意义,并在此基础上思考我们这个时代法学的使命。

During the first half of the 19th century, jurisprudence of conceptual and systematic construction, started from Historische Rechtsschule, and further promoted by Begriffsjurisprudenz, finally reached its supreme achievement in Pandektenwissenschaft. Accompanying this line of development, the notion of jurisprudential positivism emerged and took shape. Different from other forms of positivism, such as legal positivism, jurisprudential positivism illustrates mainly two interdependent propositions. One concerns the scientific nature of jurisprudence, and the other relates to the independent nature of jurisprudence. The aim of this article is to identify and evaluate these two propositions, so as to reveal their value and significance. Moreover, on the basis of the study, one can examine the mission of jurisprudence in our time.