法律自主性的境遇

The Orientation of the Legal Autonomy

自20世纪以来,法律不确定性的魔咒就一直游荡在西方法学界。这种基调的法学研究,通过言说现实的复杂性,瓦解法律的客观性、一般性、体系性、稳定性、安全性等,进而达到消解法律自主性或法治可能性之效果,故而其也被主流法学家称为反基础法学。此种研究虽然对促进法学进步、改善形式法治有积极作用,然而对未经历过严格法治熏陶的中国来说,则可能衍生错位效应。中国法理学缺乏关于法律、法治、法理等理念的基础研究,虽然立法者设置了法律规范体系,但没有倡导法律自主性,反而不断重复基于整体主义的情、理、法结合等。法律自主性是中国法治建设所必需的方法性理念,对建构法治话语体系、法治思维方式以及指引法律方法运用等均有积极意义。

Since the 20th century, the curse of legal uncertainty has been wandering in the western legal science cirle. Legal research of this kind of keynote, through expressing the complexity of reality, disintegrates the objectivity, generality, systematicness, stability and security of law, and then achieves the purpose of eliminating the autonomy of law or the possibility of the rule of law, so it is also called the antibasic jurisprudence by mainstream jurists. Although this kind of research has a positive effect on promoting the progress of jurisprudence and improving the formal theory of the rule of law, it may derive dislocation effect, especially for China, which has not experienced the influence of the strict rule of law. China’s jurisprudence lacks basic researches on the concepts of law, the rule of law and jurisprudence. Although legislators have set up the legal norm system, they do not advocate legal autonomy, but constantly repeat the integration of emotions, reasons and law based on holism. Legal autonomy is the method concept needed for the construction of the rule of law in China. It has positive significance for the construction of the discourse system of the rule of law, the way of thinking under the rule of law and the guidance of the use of legal methods.