风险社会下执法权外包之功利反思

The Introspection of the Utility of Enforcement Outsourcing under the Risky Society

风险社会的到来所引起的变革不容小觑,为了适应这一变化,需要我们的社会做出多方面的调整,这其中包括主动的调整和被动的调整,执法权外包就是被动调整措施之一。但执法权外包却是过分功利主义的体现,往往蕴含着对于公正的忽视。公正和功利是一对矛盾,两者很难同时得到并重。现在社会出于一系列的考量,功利色彩普遍偏重,但在风险社会这一特定语境和法治社会这一特定前提之下,要重新确立我们的价值取向,公正属性应得到作为执法权的本质属性的地位。只有在可以保证公正的前提之下执法权才能考虑功利的外包,同时某些不能保证公正的执法权则不能外包,而只能由国家负担,要区别对待。

The coming of the risk society caused by the reform should not be underestimated. In order to adapt to this change, we need to make the social adjustment in many aspects, including active and passiveadjustment of law enforcement power. Outsourcing is one of the passive adjustment measures. But the embodiment of law enforcement power outsourcing is too much utilitarian, and often ignores justice. Justiceand utility is a pair of contradiction, which is very difficult to be equal between the two. Now a series of considerations emphasize utilitarianism generally, but under the particular condition of risk society in thisparticular context and the rule of law society we want to reassure our value orientation, in which fairness properties should be obtained as the essential attribute of law enforcement power status. Only under thepremise of law enforcement power justice can utilitarian outsourcing be considered. Enforcement cannot be outsourced and can only be borne by the state, which should be treated differently.