二元法治观的价值困境及方法论应对

The Value Dilemma of the Dualistic Rule of Law and its Methodological Solutions

价值诉求的不同造成了形式法治与实质法治之间的反复辩驳,也造成了二元法治观的价值困境。形式法治追求法的安定性价值,排除了正确性价值;实质法治虽给予法的正确性以足够关注,却无法提供平衡法律体系封闭与开放、安定性与正确性之间的方法。解决二元法治观的价值困境,既要认识到法治是内涵双重价值的整全性实践,还要在方法论上证成法治,在立法和司法上借由法律方法的理性论证最大限度地实现安定性价值与正确性价值的平衡。

The difference in value pursuit causes constant disputes between the formal rule of law and the substantive rule of law,and also causes the value dilemma of the dualistic rule of law.The formal rule of law only pursues the value of stability and excludes the value of correctness.Although the substantial rule of law gives sufficient attention to the correctness of law,it cannot provide a way to achieve a balance between the closure and openness,the stability and correctness of the legal system.To solve the value dilemma of the dualistic rule of law,we must not only recognize that the rule of law is a holistic practice with dual values,but also justify the rule of law in methodology,and use the rational argument of legal methods to make the balance between the value of stability and the value of correctness in legislation and judiciary.