依法立法原则的法理阐释——基于法教义学的立场

Jurisprudential Interpretation of the Principle of Legislation According to Law:Based on the Standpoint of Legal Dogmatics

党的十九大报告在科学立法与民主立法的基础之上,增加了“依法立法”作为一项新的立法基本原则。学界对该项原则的现有认知仍局限在立法应当依照法定权限和法定程序的层面,将其限缩成了“依《立法法》立法”。依法立法的价值内涵体现了其与法教义学之间的密切关联。法教义学虽然强调现行实在法的约束作用,但并未主张受后者的完全拘束,具有“生产性”特征的法教义学能够积极地革新立法。立法虽然具有“法律政治”的活动属性,但不应成为一个完全不受规范约束的政治决断过程。在依法立法原则的新价值内涵之下,法教义学可以通过拘束恣意的价值判断、衔接立法方法与司法裁判阶段的教义学方法等方式实现对立法的积极影响。

The 19 th CPC National Congress report added a new legislative fundamental principle on the basis of scientific legislation and democratic legislation, which is called legislation according to law. The current understanding of this principle remains that the legislation should follow the legal authority and procedure, which equals to legislation according to the Legislation Law. The value connotation of this principle reflects its close relationship with the legal dogmatics. The legal dogmatics emphasizes the constraint of current positive law, however, it doesn’t claim the complete restriction of the positive law. With the"productive"feature, legal dogmatics can reform the legislation actively. Although the legislation has a property of legal politics, it shouldn’t become a process of political decision which completely gets rid of the constraint of legal norm. Under the new value connotation of the principle of legislation according to law, the legal dogmatics can influence the legislation through the constraint of value judgment and make a connection between the legislative method and the dogmatic method in the judicial stage.