权利:法的规范体系与价值体系相互通约的逻辑之桥

法应当是价值体系与规范体系的综合体已成共识。晚近不少法学家都重视在规范法学派的既有严整的规范体系内纳入法的价值要求,但法的规范体系与价值体系如何实现相互通约却成了一项技术难题。本文发现,传统自上而下型态的宏观统摄技术虽可解决问题,却也有不足;而微观层面上的概念——“权利”因在规范体系和价值体系各自拥有重要的地位和作用,也具备了非常理想的自下而上的通约功能。如果综合运用宏、微观两个层面的融合技术,特别是赋予“权利”这一概念充分的定义弹性,即可以在法的两套体系之间实现完美通约。

Right:the Logic Vehicle by Which the System of Legal Values can Communicates with the System of Legal Norms

It has nearly been a concurrent view that "law" should be the synthesis of these two legal systems:values and norms.Most jurists nowadays are putting great emphases on injecting the elements of legal values into the subsistent system of legal norms.Nevertheless, how to establish a proper vehicle by which the system of legal norms can communicate with the system of legal values is still a technical puzzle.This thesis excavates that the traditional solvent to this puzzle is a top-down means in a macrocosmic angle of view,which has its advantages together with its disadvantages.On the other hand,the legal concept of "right",with its outstanding status and significant function both in the system of legal norms and the system of legal values,can also furnish us a microcosmic way of thinking to tackle this problem in a bottom-up means.Consequently,this thesis holds that a perfect vehicle by which the system of legal norms can communicate with the system of legal values may be established when we adopt the macrocosmic and microcosmic ways of settlements synthetically,and especially endow the concept of "rights" with a more flexible and profound definition.