历史和经验告诉我们,无论立法者多么富有智慧,都不能使法律涵盖所有应调整的社会关系,并自主地适应社会发展。立法的滞后性、法官填补法律空白的社会事实证成了法官造法的正当性。然而法官造法决不是为所欲为的,而是受多种限制,必须遵守一定的法学方法论。我国对法官在司法过程中的创造性解释一直持否定态度,但在司法实践中法官的创造力却不得不存在而且也一直在发挥作用,只是表现方式或有不同。 History and experience tell us that no matter how wise legislators are, the law can not cover all the social relations that should be adjusted and adapt themselves to social development autonomously. The lag of legislation and the fact that the judge filled the legal gap proved the legitimacy of the judge’s lawmaking. However, judges do not do whatever they want, but they are subject to many restrictions and must abide by certain legal methodology. Our country always holds the negative attitude to the judge’s creative explanation in the judicial process. However, in the judicial practice, the judge’s creativity has to exist and has been playing its role all along, but the way of expression is different.