什么是法教义学?——基于19世纪以后德国学说史的简要考察

What is Legal Dogmatics? A Brief Observation on History of German Theory after 19th Century

当下中国学界围绕法教义学的争论缺乏对法教义学历史维度的考察,也未就"什么是法教义学"这一前提性问题达成明确共识。法教义学主要是从德国传统中成长起来的,它在历史法学时期成为独立学科,并由概念法学和制定法实证主义孕育成熟。经过利益法学与自由法运动的冲击,以评价法学为主导的法学理论对于法教义学观念进行了持续的"现代转型",呈现出开放和包容的趋势。尽管不同阶段各个学说对法教义和法教义学的理解各有不同、评价褒贬不一,但却可以从中提取出"最大公约数":法教义是围绕现行实在法展开的一般性权威命题或原理,与此相应的法教义学则具有双重含义,即知识与方法的统一。作为知识的法教义学是围绕一国现行实在法构造的"概念—命题"体系,而作为方法的法教义学是一种受一般权威拘束的思维形式("教义法学")。任何对于法教义学本身有意义的讨论乃至批评,都必须、也只能回到这种观念上来。

The dispute around legal dogmatics between Chinese scholars today goes without an observation from the historical perspective, which results in no expressive consensus on the answer to ＂what is legal dogmatics？＂ as a preconditional question. Legal dogmatics originated from German tradition, which grew as an independent discipline in the period of Historical School, then began to gestate and mature through the Conceptual Jurisprudence and Statutory Positivism. After challenge by Interest Jurisprudence and Free Law Movement, legal theory mainly in form of Value Jurisprudence made an ever lasting ＂modem transition＂ to the conception of legal dogmatics, which presented a trend of openness and inclusiveness finally. Though legal dogmas and legal dogmatics were under- stood and evaluated differently in each acadamical phase, we surely can abstract ＂the greatest com- mon divisor＂ ： legal dogma is a kind of general and authoritative proposition or doctrine based on val- id positive law. Accordingly, legal dogmatics has a double sense, i. e. as an unity both of knowledge and method. Legal dogmatics as knowledge offers a system of concepts/propositions based on valid positive law in a country, while legal dogmatics as method is such a pattern of thought that is bound by a general authority （ ＂dogmatical legal science＂ ）. Every discussion, even criticism on legal dog- matics, if to be meaningful, must, and can only trace back to this conception