法治之法是什么——法源理论视野的重新探索

What Is Law from Rule of Law: from the Theory on Source of Law

摘要: 建设法治国家,必然要有与之匹配的法治之法。从法源的视野来看,一切能够为司法判决提供权威理由的规范,甚至是提供实质理由的规范,均可成为法。因此,宪法应该是法,习惯可以是法。在此基础上,根据法源理论将法治之法类型化归纳为必然的法源、应该的法源和可能的法源。

Abstract: The must be corresponding theory on law from the rule of law in the process of constructing a country of rule of law. From the source of law theory, all norm that can promote authoritative reason for Judicial decisions is law. Constitution is law, custom is law, too, therefore, it can divide law from rule of law into must'source, should'source and may'source.