范式思维中的冲突法理论及其变革

Conflict of Laws Theory in Paradigmatic Thought and Its Change

比较法一直占据冲突法研究的主导地位,但比较法不能为冲突法提供普遍原则和共同标准,在理论和实践上均有局限性。库恩的范式理论可以与冲突法理论相结合。从历史上看,萨维尼的"法律关系本座说"是最具范式特征的理论,它有自己的哲学前提和价值取向,并以"本座"为基本概念构成了相对完整的理论范式。随着当下国际社会、经济关系的深刻变化,以萨维尼为代表的传统冲突法范式面临多种危机,预示着新的冲突法革命的到来。

The research on conflict of laws occupies the predominant position in comparative law study. Due to its own theo- retical and practical limitations, comparative law study cannot provide general principle and common criteria for conflict of laws research. Kuhn＇s Theory of Paradigm could be well combined with conflict of laws theories. Among all the theories of conflict of laws, Savigny＇s doctrine of Sitz of Legal Relationship is the most typical one with paradigmatic characteristics. This doctrine has its own philosophical premise and standpoint of value, and creates a relatively complete theoretical paradigm around the concept of ＂Sitz＂. With the profound changes of social and historical conditions, the traditional paradigm represented by Savigny＇s doctrine has been confronted with various crises, which predicts a spick--and--span revolution in conflict of laws.