一、问题的提出社科法学和法教义学是当前我国法学研究的两大路径。社科法学主要从人文和社会科学的角度研究法律,把法条看做是可批判的对象。法教义学则在信仰而非批判法条的前提下对法律展开研究。二者主要区别在于,社科法学属于立法论的思考,而法教义学属于司法论的思考。“立法论的思考是一个‘应当’与‘不应当’的问题,而司法论的思考是一个‘是’与‘不是’的问题。前者是对法的正当性与合理性的评判,而后者则是以法律为逻辑起点的推理。”[1]对于法学研究而言,立法论的思考和司法论的 First, the issue put forward Social Science Law and Legal Doctrine is the current law of our country two paths. The law of social sciences mainly studies law from the perspectives of the humanities and social sciences, and regards the law as a critically object. Legal teachings study the law on the premise that faith is not critical of law. The main difference between the two lies in the fact that social science law belongs to the thinking of legislation and that legal teachings belong to the thinking of judicial theory. “Thinking on the theory of legislation is a question of ’should’ and ’should not’, while the thinking of the judiciary is a question of ’yes’ and ’no’, the former is the judgment of the legitimacy and rationality of the law, and then Is based on the logic of law as the starting point of reasoning. ”[1] For legal research, the legislative thinking and judicial theory