法秩序的统一性与违法判断的相对性

The Unity of Legal Order and the Relativity of Judgment of Illegality

通过梳理法解释学领域中的问题思考与体系思考的两种解释方式能够引出法秩序的统一性和违法判断的相对性议题。在法哲学层面有"存在论"与"目的论"的学说对立,而基于比较法视角,德国与日本在法秩序统一性相关理论和违法判断理论方面也存在显著的差异。因此,有必要进一步地就法秩序的统一性含义问题、法秩序的统一性与违法判断统一性、违法判断相对性之间的关系问题等进行评述,展示其各自理论形成的逻辑进路,分析德日理论出现差异的社会环境原因。法秩序的统一性并非绝对地要求排除规范之间的矛盾,违法判断的统一性理论也并非法秩序的统一性要求的必然归结,反倒是违法判断的相对性理论更能符合法秩序在目的论层面上的统一性的要求。

Starting from the problem thinking and system thinking in the field of legal hermeneutics,this paper raises the issues of unity of legal order and relativity of illegality judgment. At the level of legal philosophy,there are opposites between "ontology"and "teleology". From the perspective of comparative law,there are also significant differences between Germany and Japan in the theory of the unity of legal order and the theory of illegal judgment. While introducing the unification theory of Illegal judgment and various theories and main viewpoints of illegal judgment,it is necessary to further comment on the unification of legal order,the relationship between the unification of legal order and the unification of illegal judgment,and the relationship between the relativity of illegal judgment. It shows the logical path of their respective theories,and analyses the social environment reasons for the differences between German and Japanese theories. As a conclusion,the unity of legal order is not an absolute requirement to eliminate the contradiction between norms,and the unification theory of illegal judgment is not the inevitable conclusion of the unification of legal order. On the contrary,the relativity theory of illegal judgment can better meet the requirement of the unity of legal order at the teleological level.