追問法律的意義：從西方法學流派的觀點為探討

An Inquiry into the Meanings of Law: From the Viewpoints of Western Law Schools

「法律是什麼」？在民主立憲國家以憲法為根本法的概念上，法律是經過主權者授權議會制訂、審議通過，由國家元首公布的規則。不過，對法律的定義，尚不足以說明「法律是什麼」？因為「法」隨著時空環境，透過西方法學流派對法律的觀點或詮釋，經常變化它存在的本質與意義。
就西方法學傳統言，自然法論與法律實證主義是明顯的兩大法理論，核心命題環繞在法律是什麼、法律應該是什麼，以及法律制度應該如何運作的問題。假使以國家法律來回答法律是什麼，是惡法亦法，我們必須服從法律，但卻與我們認為法律應該是正義的直觀，有所齟齬；又假若我們不知法律在何種界定或何種範圍來論證法律之所以是法律，法律如何應該成為正義，似乎也就沒能真正認識法律。本文將從西方法學理論，即自然法論、法律實證主義及其他流派，包括法律社會學、實用主義法學、法律唯實主義、批判法學，乃至顛覆現代法治基石的後現代法學，扼要歸納比較各家論點以追問法律的意義。

What is law? In democratic nations, laws are made and approved through councils authorized by citizens based on their constitution and made publicly known by the leader of the country. But this does not really define what law is, for with the changes of temporal and spatial conditions, and with the interpretations of the scholars of various Western law schools, the natures and meanings of the law change. In the Western tradition, there are two obviously different theories of the law, namely natural law and legal positivism. The differences lie on these issues: What is law? What should law be like? How should law be practiced? If these issues are to be answered by the existing law of a country, any questionable laws are laws to be practiced in reality, and we are supposed to follow these laws. But this comes to be at odds with what we know about the law: Law is justice. On the other hand, if we do not know how to define the law and make it represent justice, we do not truly know the law. From the viewpoints of natural law, legal positivism and some other Western law schools, this study is to explore the meanings of the law with discussions related to the sociology of law, legal pragmatism, legal realism, critical legal studies, and even postmodern jurisprudence, which tends to subvert modern bases of ruling by law.