原则和规则的若干问题

法律原则是一种根本规范或基础规范 ,其在法体系或法部门中居于基础性地位。由于成文规则自身存在种种不足 ,在法律中引入原则就成为必要。原则与规则之间既有个性 ,也有共性。种种分析表明 ,规则与原则之间存在着冲突 ,其根源在于它们各自所代表的法律价值和社会价值是互有差异甚至截然相反的。规则中心主义和原则中心主义是解决法治进程中种种难解之题的两种思路 ,遗憾的是 ,它们都无法将法律和法治从现在所面临的困境中挽救出来。

A legal principle is a fundament or basic rule which is at the center of a legal system or branch of law. Due to various kinds of defects in the written rules, it is necessary to introduce principles into the law. There are both differences and common characters between principles and rules. Various analysis demonstrate that there are conflicts between rules and principles and that the root cause of such conflicts is that the legal and social value they represent are different from or even opposite to each other. Rule-centralism and principle-centralism are the two methods used to solve various problems in the process towards the rule of law. Unfortunately, however, none of the two methods are likely to rescue the law and the rule of law from the present predicament.