论法律与习惯的关系——以理性主义哲学为视角

On Relationship of Laws with Customs:From Perspective of Rationalistic Philosophy

我国研究法律与习惯关系的主要进路大致可以概括为"普遍与个别"的关系。但仅仅从这一进路进行思考是不够的。事实上,从"理性与非理性"对立的角度去思考法律与习惯的关系是更有思想深度的进路。这一进路大致要遵循黑格尔辩证法之要求,以"正、反、合"的方式,扬弃法律与习惯的对立,而寻求同时能包容两者的更高者。循此思路法律与习惯的关系大致可以表述为:法律塑造习惯,习惯亦参与法律判断之最终形成。

The main pattern of China for studying the relationship of laws with customs can be generally summarized as the relation between the general and the individual. But it is not adequate to think along the pattern only. As a matter of fact, it is a profound pattern for thinking the rela-tionship of laws with customs from the perspective of opposition of ＂rationalism with non-ratio-nalism＂. The pattern just follows the requirements of Hegelian dialectics in the form of “ thesis, anti-thesis and synthesis”,to give up the opposition of laws with customs and pursue a higher one to contain both. Such high one can be described as follows： law shape customs and customs are also involved in the formation of final legal judgments.