法学的学科性质及其刑法方法论

The Nature of the Discipline of Jurisprudence and the Methodology of the Criminal law

刑法学属于部门法学,因而刑法的学科性质取决于法学的学科性质。法学作为一门学科,具有悠久的历史,其在人文社会科学中的性质与地位经历了漫长的演变过程。我国目前存在法教义学与社科法学的争论,其实这两者只是法学的两个面相。传统的法学方法论皆以民法方法论为范本,然而,刑法方法论具有不同于民法方法论的特殊性,主要表现为罪刑法定原则对刑法方法论的制约,因此需要对刑法方法论进行专门研究。刑法方法论可以从刑法思维、刑法解释和刑法推理这三个方面展开,三者之间既有区分,又存在密切联系,应当多层次和多维度地对刑法方法论进行类型化论述。

The criminal law is part of sectoral law,and thus the nature of the discipline of criminal law depends on the nature of the discipline of jurisprudence.Jurisprudence as a discipline has a long history,and its nature and status in the humanities and social sciences have undergone a long process of evolution.There is currently a debate between the legal dogmatics research and the social science research of law in China,which are in fact only two facets of jurisprudence.Traditionally,the methodology of jurisprudence is based on the methodology of the civil law.However,the methodology of the criminal law has special characteristics different from the methodology of the civil law,which are mainly manifested in the constraints imposed by the principle of crime and punishment are legally binding on the methodology of the criminal law.Therefore,it is necessary to carry out a specialized study on the methodology of the criminal law.The methodology of criminal law can be developed from three aspects:thinking in criminal law,interpretation of criminal law and reasoning in criminal law,which are all differentiated and closely related,and should be typologized in a multilevel and multifaceted manner.