立法:创造还是发现

Legislation: Discovery or Creation

建设法治国家的重要前提是社会成员对法律的信仰,要求"良法之治"。立法要在社会成员不同利益要求的"博弈"中求得一种平衡,立法还要照顾到现实中已有的习惯和惯例。只有这样才能使法律发挥应有的作用,否则就会造成法律与现实的脱节,并进而造成法律的整体软化。在此意义上讲。

The presupposition for building a law ruled n ation is that each citize n has faith in the law that is 'sound and perfect'. Legislation should not only balance the different interests demanded by individual members of the society, b ut also take into consideration of the customs and conventional practices existe d in reality. Only in this way can law exert its full function. Otherwise it wil l be divorced from reality and becomes weak on the whole. In this sense, the nat ure of legislation is to discover rather than to create.