法治思维的前提之殇及其修复

发布时间：2019-03-16 16:00

【摘要】：后现代法学等否认了法律意义的客观性、确定性,认为法律进入思维过程就会出现意义的流动性、不确定性、模糊性等,据此推论,根据法律的思考是不可能的,法治思维的前提存在着缺陷。然而,后现代法学等在指出法律的"缺陷"以后没有提出相应的对策,不清楚他们所揭示的真相只是法律实施的一个侧面。尽管这种真相的揭示对法学研究有积极的意义,但如何在认识这些问题的基础上寻求救济之道更具理论和实践价值。后现代法学等没有看到,法律方法的运用可以使流动的法律暂时停下来变得确定、模糊的法律变得清晰。法律方法不仅可以证成法治的可能性,而且可以通过运用逻辑推理、发现解释和论证修辞等方法修复法治思维的前提之殇。在法治建设中应该做到:把逻辑规则当成法律思维的组成部分,从而固化法律的意义;在发现、解释法律的过程中限制法律人的任意创造;通过把法律作为修辞以改造传统的政法思维,使人们的判断与决策更加接近法治理想。
[Abstract]:Postmodern law and so on denied the objectivity and certainty of the legal meaning, and thought that the legal entry into the thinking process would lead to the flow of meaning, uncertainty, fuzziness, etc. According to this inference, according to the legal thinking, it was impossible to think about it. There are defects in the premise of rule of law thinking. However, postmodern law and so on did not put forward corresponding countermeasures after pointing out the "defects" of the law, and it was not clear that the truth revealed by them was only a side of the implementation of the law. Although the disclosure of the truth is of positive significance to the study of law, how to seek relief on the basis of understanding these problems is of theoretical and practical value. Post-modern law and so on did not see, the use of legal methods can make the flow of law temporarily stop to become certain, vague law becomes clear. The legal method can not only prove the possibility of the rule of law, but also repair the premise of the thought of rule by law by using logical reasoning and other methods such as explanation and argumentative rhetoric. In the construction of rule of law, we should take logical rules as a part of legal thinking, thus solidify the significance of law, restrict the creation of legal people in the process of discovery and interpretation of law, and limit the creation of legal person in the process of discovery and interpretation of law. By using the law as rhetoric to reform the traditional thinking of politics and law, people's judgment and decision-making are closer to the ideal of rule of law.
【作者单位】：华东政法大学法律学院;
【基金】：教育部人文社会科学重点研究基地重大项目“法律方法理论研究”(10JJD820008)的阶段性成果
【分类号】：D920.4

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