恶法亦法理论的历史寻踪及其价值

恶法亦法理论萌芽于苏格拉底,形成于奥斯丁。如果说良法理论催生了实质法治,那么,恶法亦法理论则催生了近代形式法治。恶法亦法理论在当代中国的价值表现为:它有助于中国在法治初级阶段强化规则意识;有助于解决当代中国法律难于实施的问题。归根结底,最根本的还是寄望以此解决中国法治的生根问题。有鉴于此,法学理论应从浪漫主义转为坚持法律保守主义。

Historical Investigation into "Evil Law is Law"Theory and Its Present Value

The theory of "evil law is law"originated in the times of Socrates and formed by Austen.The theory of conscientious law leads to the birth of substantive constitutionality,while the theory of "evil law is law" leads to the birth of modern form of constitutionality."Evil law is law" theory has its own value in China.It will be helpful to enhance rule awareness in the primary stage of constitutionality and solve the problems in modern law.Therefore,the theory of law should be converted from romanticism to legal conservatism.