也论中国法学向何处去

近些年,中国法学正依循着"知识—文化法学"的进路前行;法学研究越发成为疏离社会现实而自闭、自洽和价值自证的文化活动。受此影响,中国法学对法治实践的贡献度和影响力正不断减弱。形成这种状况的重要原因之一是,中国法治实践并不完全符合法学人对法治的愿望和期待,从而导致一部分法学人放弃对法治实践的关注和参与。本文认为,中国实行法治的主要难点在于,传统法治理论以及西方法治模式中被认为具有普适性的某些原理、原则以及制度遭遇到中国具体国情的挑战。因此,中国法学应当立基于"法治的中国因素",直面中国的法治实践,对在中国这片土壤中如何实行法治做出自己的回答,为中国法治的创造性实践提供应有的智慧。

Where China's Legal Science Will Go?

In recent years, Chinese legal science has been adhering to the path of "Knowledge-Cultural Oriented Legal Science." Legal researches are gradually becoming cultural activities that are alienated from social conditions and such activities are closed up, autonomous and self-proving. Influenced by such a methodology, the contributions and influences of the Chinese legal researches to the legal practice in China are thus greatly weakened. One of the important factors that bring about such a condition is that the legal practice in China does not always come up with the wishes and expectations of the Chinese legal researchers for the ideal of the rule by law, which causes the Chinese legal researchers to abandon their concerns for and participation in the legal practice. Author of this thesis is of the opinion that the problem of the Chinese legal practice lies in the Chinese challenge to the rationales, principles and systems which are universally recognized and applied in both conventional and modern Western patterns of the rule by law. Accordingly, the Chinese legal science should focus upon the "Chinese Conditions and Factors of the Rule by Law", directly facing the Chinese conditions and endeavoring to find the pertinent answers to the question as to how to operate law in the Chinese soil and offer wisdom to the creativity of the Chinese pattern of the rule by law.