政策作为法的渊源及其法治价值

The Policy Acting as Sources of Law and Its Values for Legal System

在社会高度分工合作、高度分化整合的社会政经条件下,政策作为一种由国家推动和保障实现的行为规范已与法相互融合乃至密不可分,由此决定了"去政策化"之不可能。追求体系的形式理性法应友好、适当地接纳对社会实在更具时效性及亲和力的政策性规范,释放一定的入口,防止成文法体系成为封闭、僵化的存在。政策对于"法律"的适用具有补充、梳理、纠错、协调和主导的功能,将其定位为法的实质性渊源,可使之成为沟通、弥合"形式法治"与"实质正义"之区隔的桥梁;在我国,中国共产党作为执政党,其政策法规在一定情形下、相当程度上也具有法的渊源功能。在法治的问责制条件下,政策能够被合理"规训"并发挥其对法治的构建作用,而成为法治的内在要素。

Under the social political and economic conditions featuring highly cooperation with a due division of labor as well as highly differentiation and integration, policy as a code of conduct is integrated with and even inseparable from the law. As a result, the'depolicization'of law becomes impossible. The formal rational law should friendly and appropriately embrace policy-based regulations which are more time-efficient and compatible to social existence. Incorporating such policies may prevent the statutory law system from getting too exclusive and rigid. Policy can supplement, reorganize, correct, coordinate and guide law. Identifying policy as the substantial source of law helps to bridge the gap between' the formal legal system'and'the substantial justice '. In China, the policies and regulations of the ruling Communist Party of China are, to a certain extent, the origin of the law under certain circumstances. In the legal accountability system, policy can be properly' disciplined 'and play an important role in establishing the legal system. It has therefore become an internal factor of legal system.