教育法学体系化的域外比较与中国路径

Extraterritorial Comparison and China’s Path of the Systematization of the Science of Educational Law

实现教育法学体系化的共识日渐形成,既源于启动教育法典编纂的宏观指引和克服碎片化立法弊端的现实需要,也源于学科获得相对独立地位的理论自觉和方法自觉。从比较法经验来看,域外教育法学的体系化进路呈现三种模式:以美国为代表的专题化模式坚持问题导向;以德国为代表的系统化模式坚持逻辑导向;以日本为代表的功能化模式坚持价值导向。这三种模式各有利弊且植根于特定的法律文化背景,但依旧呈现出不少值得重视的共性特征。它们均以某些核心概念为基点来建构逻辑体系,并形成了相对成熟的、面向法律适用的教育法释义学,且教育法学体系的形塑和演进还与教育法制形态彼此互动。立足于教育治理的特殊国情,我国教育法学的体系化之路应当重视宪法规范对教育法理论的统摄功能,将基本权利作为兼具解释价值和规范价值的理论起点,并进一步形成教育法学总论与分论的演绎式逻辑体例。在此基础上,还有必要坚持教育法立法论和解释论的二元并重,在当下尤其需要重视法解释学技术的养成和运用,以在整体上推进教育法学向纵深发展。

The consensus of realizing the systematization of the science of educational law has been formed day by day,which not only stems from the macro guidance of starting the compilation of education code and the practical need to overcome the disadvantages of fragmented legislation,but also from the theoretical consciousness and methodological consciousness of the discipline to obtain a relatively independent status.From the experience of comparative law,there are three modes in the systematic approach of the science of educational law:the thematic mode represented by the United States adheres to the problem orientation;the systematizationmode represented by Germany adheres to the logic orientation;the functional mode represented by Japan adheres to the value orientation.These three modes have their own advantages and disadvantages and are rooted in specific legal and cultural backgrounds,but they still show many common characteristics worthy of attention.They all construct the logical system based on some core concepts and form a relatively mature legal dogmatics of the science of educational law for the application of law.At the same time,the shaping and evolution of the science of educational law also interact with the form of educational legal system.Under the special national conditions of educational governance,we should pay attention to the controlling function of constitution on the theory of educational law,take the basic rights as the theoretical starting point with both explanatory value and normative value,and further form the deductive logical style of the general theory and sub theory.On this basis,it is also necessary to adhere to the dual emphasis of legislation and interpretation of the science of educational law,and to pay special attention to the cultivation and application of legal dogmatics at present,so as to promote the in-depth development of educational law as a whole.