摘要
立法与司法是两种很不相同的活动,但又都是有关法律的活动,理应都纳入法理学的研究范围。但实际上,法理学的大量精力投向了司法活动,而忽视了立法。立法已经成为一国之内或国际之间建构秩序的重要活动,也因此越来越受重视。为此,西方一些法学家提倡一种系统的针对立法的法理学,以帮助人们更好地理解立法活动,使人们获得更好的立法结果。立法法理学的研究不同于政治学意义上针对立法现象进行研究的立法学,它的根本问题是"什么是好的立法",以及由这个问题而衍生出来的对于立法者和立法过程的研究。这一领域在中国几乎未受关注。中国正处于"大立法"时代,立法法理学应有助于理解和回答中国问题。
Though differing in nature, process and domain, among other things, both making and applying of law are important phenomenon of law, both of which should therefore be object of jurisprudence. However, to a large extent, legislation has been ignored in theoretical studies of law. Legislation has become an important instrument for order building in and between nations. In response to such a trend, some western legal scholars have advocated a jurisprudence mainly focusing on legislation （ also called Legisprudence）, with the help of which people are able to better understand the activities of legislation, and legislation of better quality would be produced. The aim of this paper is to introduce the historical background of this new research agenda, its theoretical foundation and major research questions. Distinct from legislative studies in terms of political science, Legisprudence focuses on the basic question of ＂what is the good legislation＂, and other questions regarding lawmaking process and lawmaker which are derived from the basic question. There is little discussion on Legisprudence in China. Since intensive lawmaking ac- tivities have been occurring in China at both central and local level since 1978, Legisprudence would help understand and answer relevant theoretical issues in China.
出处
《杭州师范大学学报（社会科学版）》
CSSCI
北大核心
2012年第5期113-120,共8页
Journal of Hangzhou Normal University(Humanities and Social Sciences)
