论法律中的形式与实质
发布时间：2018-12-09 11:30
【摘要】：形式与实质是当前我国法理学研究的核心范畴之一。从哲学角度看,形式与实质的对立实际上即是肯定与否定的对立。这样,形式与实质的关系就转化为肯定与否定的关系。黑格尔论及此两者的关系时指出:一切否定都是自否定。因此,形式与实质的关系即是一个自否定的关系。而在这一过程中易产生的误区首先是以为实质对形式的否定是外在的否定,英美法中形式推理与实质推理理论即是典型。其次是没有认识到实质必然要以形式的方式表现出来,而不断追求所谓实质,其结果是陷入否定的恶无限。而真正恰当处理形式与实质的方式是把它们的关系视为形式自己否定自己的过程,即高级形式通过实质这一中介否定低级形式的过程。
[Abstract]:Form and essence are one of the core categories of jurisprudence research in China. From the philosophical point of view, the opposition between form and substance is actually the opposition between positive and negative. In this way, the relationship between form and substance is transformed into the relationship between positive and negative. Hegel points out that all negation is self-negation. Therefore, the relationship between form and substance is a self-negation. In this process, the misunderstanding is that the negation of substance to form is external negation, and the theory of formal reasoning and substantial reasoning in Anglo-American law is typical. Secondly, we do not realize that the essence must be manifested in the form of form, and pursue the so-called essence constantly, the result is that it falls into the evil infinite of negation. The proper way to deal with the form and substance is to regard their relationship as the process in which the form itself negates itself, that is, the advanced form negates the low-level form through the medium of substance.
【作者单位】： 浙江大学光华法学院;
【基金】：“211工程”三期国家重点学科建设项目(203000-123210301) 教育部哲学社会科学重大课题攻关项目(08JZD0010)
【分类号】：D926
[Abstract]:Form and essence are one of the core categories of jurisprudence research in China. From the philosophical point of view, the opposition between form and substance is actually the opposition between positive and negative. In this way, the relationship between form and substance is transformed into the relationship between positive and negative. Hegel points out that all negation is self-negation. Therefore, the relationship between form and substance is a self-negation. In this process, the misunderstanding is that the negation of substance to form is external negation, and the theory of formal reasoning and substantial reasoning in Anglo-American law is typical. Secondly, we do not realize that the essence must be manifested in the form of form, and pursue the so-called essence constantly, the result is that it falls into the evil infinite of negation. The proper way to deal with the form and substance is to regard their relationship as the process in which the form itself negates itself, that is, the advanced form negates the low-level form through the medium of substance.
【作者单位】： 浙江大学光华法学院;
【基金】：“211工程”三期国家重点学科建设项目(203000-123210301) 教育部哲学社会科学重大课题攻关项目(08JZD0010)
【分类号】：D926
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