法理即法律原理之解说

自清末民初以来,将法理解说为法律原理就成为法学界的通例,但其界定方式则有四种:一是径直以法律原理定位法理;二是将法律原理、法律原则并列来定位法理;三是将法理视为由法律原理推导出的法律一般原则;四是认为法理是指法律原则,但包括法律原理在内。法理和法律原理的存在是一种客观的必然:世上的万事万物都应有其存在和运行的原理,法律自然也不例外;法律作为人类的伟大创造,自身即蕴含着追求正义等法律价值的法理;法律的价值观念虽因时代、地区的不同而会有所差异,但其中的基础法理却不受时空影响;对法律的分析和研究舍法理之外别无他途。立足于已有的研究成果,可将法理界定为"在综合各种法律现象的基础上,由学者所抽象并为社会所认同的有关法律基础、法律根据、法律判准、法律渊源的基础性、普遍性原理"。同时,法理与自然规律、社会价值、内存于法典和单行法律中的法律原则以及事理、情理等存在明显的差异,不可混淆。

The Explanation on Taking the Philosophy of Law as Legal Theory

Since the late Qing dynasty and the early period of the Republic of China, there is a Convention among legal scholars about taking philosophy of law as legal theory. However, there are four different approaches to define it: the first is that using legal theory directly defines the philosophy of law;the second is that using legal theory and legal principle collaterally defines the philosophy of law;the third is that the philosophy of law is deemed as the general legal principle deduced by legal theory;the fourth is that the philosophy of law refers to legal principle including legal theory. The existence of philosophy of law and legal theory is an objective consequence: everything in nature has its principle of existence and function, and law is certainly not the exception. As the magnificent creation of human being, law itself implies the philosophy of law with legal value pursuing justice. Although the legal value changes over time and from place to place, the fundamental legal theory will remain unchanged. There is no other appropriate method to study and analyze law except ways of jurisprudence thinking. Based on the existing literature, the philosophy of law could be defined as ‘the fundamental and universal theories in the relevant legal basis, legal ground, legal determination and legal source which are abstracted by the scholars and recognized by the society’. Simultaneously, it is notable not to confuse philosophy of law with law of nature, social value, legal principle contained in the statute and separate law, common sense, moral reason, etc. since there are many differences among them.