无需法律的秩序——法治理想国与真实的法治世界

Order without Law

受传统法治理论的影响,目前理论界、实践界有夸大法的作用的倾向,并设计、实施了许多适用于法治理想国的理论、技术。但在现实世界,尤其是在熟人社会中,促成并维系秩序的并非法律,而是自发形成的社会规范;此外,私力救济也仍然大量存在。而无论是社会规范还是私力救济都有其存在的法社会学、法经济学基础。所以,我们应当正视法治理想国与真实法治世界的差异,建构符合法治现实的理论并指导实践。

Because of the influence of traditional theory of rule by law, the functions of law have been magnified not only in theory, and many theories and techniques have been proposed to realize the ideal of rule by law. However, in reality, especially in a society of acquaintances, it is not the law, but instead the social norms that help to form and maintain social order. Besides, self-help remedy prevails. And both social norms and self-help remedy are based on legal sociology, law and economics. Therefore, we should pay attention to the differences between ideal rule by law and the real world, and try hard to formulate a more reasonable and useful theory.