自由还是秩序——关于法律价值的历史考察

Order or Freedom: The Historical Development of Law's Value

法律价值是法律对主体的效应,即对主体需求的满足,主体对法律的需求主要表现为秩序、自由、公平、正义、效率等,其中自由和秩序是最重要的。秩序在法律中表现为义务,自由表现为权利,权利和义务是法律关系的基本内容。在前国家法时代,法律的主要功能是维护社会秩序,是义务本位的;奴隶社会的法则是权利义务倒置;封建制法和资本主义法则表现为权利义务不对等;社会主义法是权利与义务对等,秩序和自由并重的法。

The value of law is decided by its effects to the subject, or its satisfaction of the subject's needs. The subject's needs from the law include order, freedom, fairness, justice and efficiency, among which the first two are the foremost. In law, order is embodied in obligation and freedom in rights. In pre-state periods, law is obligation-based, its function being to impose order. In slave societies rights and obligation are reversed in position. Rights and obligations are not equal either in feudal or capital laws. Equity of rights and obligations is realized in the socialist law, which places both order and freedom at its core.