论文部分内容阅读
法律渊源学说在当代中国表现为两种立场:立法立场与司法立场。立法立场强调法律渊源与法律形式等同,而司法立场则认为法律渊源是法官发现法律的处所,是对法律发现的约束。这两种学说都有其缺陷。立法立场的学说使法律渊源变成了一个没有实践价值的概念。而司法立场的法律渊源学说尽管引入了法官视野,但却也无法解决法律渊源与法律相同一的矛盾。这种现象的克服需要对法律渊源概念进行再理解。
The law of origin of law is manifested in two kinds of positions in contemporary China: the legislative position and the judicial position. The legislative position emphasizes that the origin of law is identical with the legal form, while the judicial position holds that the origin of law is the place where judges discover the law and is the constraint on the discovery of the law. Both theories have their drawbacks. The doctrine of the legislative position turns the source of law into a concept of no practical value. However, although the legal origin theory of judicial position introduces the view of judge, it can not solve the contradiction between the origin of law and the law. Overcoming this phenomenon requires a new understanding of the concept of legal origin.