从弱契约、利益可接受证成法律之为制度修辞

The Weak Contract, the Benefits of Acceptable Evidence, Evidence of Law as the System Rhetoric

社会契约的实践形态,可分为两种:其一是近代以来建立在民主宪制基础上的社会制度,它以民主为前提,以宪法和法律作为社会契约的具体表现形式,这种契约即强契约;其二是建立在法律规则基础上的社会制度,其特点是社会主体对法定利益的可接受性,因此,这种社会契约乃是人们对当下法律进行利害权衡的产物。尽管这里的法律没有经过民主的程序,但只要其对社会主体能收到"两利相权取其重,两害相权取其轻"的效果,并因之而被人们所接受,那么,它客观上就是一种社会契约-弱契约。经由弱契约的这一逻辑,也会证成法律之为制度修辞的属性。法律的修辞特征,意味着法学只能坚持价值-实用路向的逻辑,而不是事实-科学路向的逻辑。

The form of practice of the social contract can be divided into two kinds.One is the social institution on the premise of democracy in the form of the constitution and laws as a social contract. This contract is a strong contract. The other is the social institution based on the rule of law .Its characteristic is the acceptability of legal interests of social subjects. Therefore, this kind of social contract is the product of balancing of interests of people, though the laws do not be laid down with democratic procedures, but as long as the social subjects can receive and accept effects of the lesser of two effects and the best of two options, it is objectively a kind of weak social contract. Through this kind of weak social contract, the property of laws as a systematic rhetoric will also be proved. The rhetorical characteristic of laws means that the study of jurisprudence can only insist on logic of the value-practice approach, but not the logic of the fact-science approach.