论法律形式与法律渊源的界分

法律形式与法律渊源的关系比较复杂,但是我国学者一般将之作为等同的概念使用。这种观点导致了某些学术上的混乱,也导致法律形式和法律渊源各自的作用没能够充分发挥。正确界定法律渊源和法律形式,是实现二者区分的逻辑起点。法律形式是法律文本的表现方式;法律渊源是裁判规范的集合体,法官从中发现裁决案件所需要的裁判依据和裁判理由。由此可以得出二者之区分:从实践来看,法律渊源之法是指司法之法,法律形式之法是指立法之法;从内容来看,法律渊源之法是具有一定开放性的规则体系,而法律形式则是具有一定封闭性的规则体系;从路径来看,法律渊源之法是在司法适用过程发现和寻找的,法律形式之法是立法中形成的。司法适用之法完全局限于制定法之时,二者会出现种属统一,但是其概念内涵依然有着重大区别。

Differentiation between Legal Forms and Sources of Law

The relationship between legal forms and sources of law is rather complex, but scholars in our country tend to use them interchangeably with no distinction, which have resulted in academic confusion and their respective functions failed to well perform. The differentiation between legal forms and sources of law starts logically from explicit definition. Legal forms express legal texts while sources of law are aggregation of judiciary norms, and judges discover judgment grounds and reasoning therefrom. From practical point of view, sources of law are laws for judiciaries while legal forms serve legislation. With regards to their content, sources of law are open - ended rules systems while legal forms are relatively inclusive. In comparing the development path, sources of law require discovering and searching in judicial application while legal forms are established by legislation. In case where laws for judicial application are subject to statutory laws, sources of law and legal forms may be unified into one category but there are still major differences of conception between them.