自历史法学派对法典编纂的质疑以降,实在法被区分为法和活法,认为法治之法是由法、活法、自然法构成的。法治的重心转移到了活法,特别是司法和法官。这种话语系统同样影响着处于前现代场域的中国,玩味立法在法治中角色的演变,鼓吹法官自由裁量权成为了时髦。对此应持谨慎态度,期望通过对法官自由裁量权本土语境的讨论,明确形式理性法治模式方为当代中国法治路径的次优选择。 Since the historical jurisprudence questioned the codification of the code, the real law was divided into the law and the living law, and the law of law was constituted by the law, the living law and the natural law. The focus of the rule of law has shifted to living law, especially to justice and judges. This discourse system also affects the evolution of the role played by the pietistic legislation in the rule of law in the pre-modern field, and advocates that judges’ discretion becomes fashionable. We should be cautious about this issue and hope that by discussing the local context of judges’ discretion, we can clearly define the mode of rational law of law as the second best choice for the path of the rule of law in contemporary China.