论法律中的形式与实质

On the Form and Material in Law

形式与实质是当前我国法理学研究的核心范畴之一。从哲学角度看,形式与实质的对立实际上即是肯定与否定的对立。这样,形式与实质的关系就转化为肯定与否定的关系。黑格尔论及此两者的关系时指出:一切否定都是自否定。因此,形式与实质的关系即是一个自否定的关系。而在这一过程中易产生的误区首先是以为实质对形式的否定是外在的否定,英美法中形式推理与实质推理理论即是典型。其次是没有认识到实质必然要以形式的方式表现出来,而不断追求所谓实质,其结果是陷入否定的恶无限。而真正恰当处理形式与实质的方式是把它们的关系视为形式自己否定自己的过程,即高级形式通过实质这一中介否定低级形式的过程。

The categories of form and material are two core categories in recent jurisprudence studies in China. Scholars have stubbornly tried to find the corresponding items of form and material respectively in reality, but they neglect that this couple of categories do not have substantial existence, but rather are in a state of transition towards each other. This has been realized by Weber who pointed out that in some sense the concept of material by itself is a concept of form. If we analyze this couple of concepts further on a philosophical level, it can be seen that the so-called opposition of form and material is actually the opposition of affirmation and negation. Different answers to the questions of whether form or material comes first or whether form or material is the essence reflects two tendencies in philosophy： the affirmation tendency and the negation tendency. The affirmation tendency, of which Plato＇s philosophy is representative of, stresses the item itself in the same link as the idea. Further, Aristotle points out directly that form is the real essence. Based on thoughts of this tendency, the opposition of form and material isalmost impossible, because the affirmation tendency holds that form is material. On the other hand, the negation tendency, of which the philosophy of Buddhist and Taoist in China is representative of, thinks that the ＂Wult（empty）, which eliminates everything, is the real essence and all the things which are fixed are not the essence and should be cleared up. The negation tendency is the origin of the opposition of form and material. It is Hegel＇s dialectical philosophy that appropriately deals with these two contradictory tendencies Hegel further developed the idea proposed by Aristotle. He suggested that all positive parts contain negative parts and vice versa. Hegel also pointed out that all the negations are self-denials. According to Hegel,it can be said that the relation between form and material is self-denial. However, there have been some misunderstandings about the relation between form and material. Firstly, the negation to the material of form was assumed as a superficial negation, the thought of which can often be found in the theory of formal inference and material reasoning in Anglo-American laws. Secondly, it is not fully understood that material is bound to be expressed by formal means. The result of permanently pursuing the so-called material would make us slip into a vicious infinity of negation. The best way to deal with the relationship between form and material is to treat the form as a process of self-denial. In other words,form is the process in which the high level form denies the low level form through the media of material.