法教义学与社科法学的异中之同——一种法哲学省察

Differences and Similarities Between Dogmatics of Law and Social Science of Law——An Examination of Legal Philosophy

学界关于法教义学或社科法学作为主流法学研究范式的论争并不充分,原因之一是法哲学视野的省察长期缺失。各部门法学几乎天然就是教义学式的,作为方法论的法教义学常常被誉为法学的安身立命之本。其实,法哲学可以看作法教义学自带的纠错系统或纠偏系统,前者总是站在更广阔的理论平台上检视后者的基本问题和前提问题,追问现代法律从形式到实质内涵的整体意义上的合法性与正当性。对法哲学的理解往往贯穿社科调研的整个过程,决定研究方法的选择、材料筛选的标准、数据处理的方式等,也决定研究者自我反思的深度及其理论推演的原点设定。从法哲学视角看,法教义学和社科法学在相异中不乏相同之处,用沃格林的话说,两者本质上都属于非智性阐释。

The debate on whether dogmatics of law or social science of law is the mainstream paradigm of law research is still not enough. One of the reasons is the long-term absence of the examination in vision of philosophy of law. The jurisprudence of various departments is almost naturally doctrinal. As a methodology, jurisprudence is often regarded as the foundation of law. In fact, the philosophy of law can be regarded as the error-correcting system or deviation-correcting system of the doctrine of law. The former always stands on a broader theoretical platform to examine the basic and prerequisite problems of the latter, and to inquire into the legality and legitimacy of modern law in the overall sense from form to substance. The understanding of legal philosophy often runs through the whole process of social science research, deciding the choice of research methods, the criteria of material selection, the way of data processing, and so on. It also decides the depth of researchers′ self-reflection and the setting of the origin of their theoretical deduction. From the perspective of legal philosophy, there are many similarities and differences between legal doctrine and social science law. In Voegelin′s words, both of them are essentially non-intellectual interpretations.