法律自律论

On Legal Self-Regulation

康德认为,道德规范人的内在思想动机,不具有强制性因而是自律的;法律规范人的外在行为效果,具有强制性因而是他律的。传统的法律他律论建立在法律的外在性、强制性、预测性之上,这种立论基础在当今法治社会已发生重大改变,表现在法律由外在立法走向自我立法、由强制性走向正当性、由外在观点走向内在观点。因此,现代法律不仅具有他律的性质,也具有自律的性质。随着法治社会的发展和公民法律素质的不断提高,对法律的遵守,自律的比重将会不断增加,他律的比重将会不断减少。自律既彰显人性的光辉,又能凸显法律的权威和尊严,建立人与法律之间的信任感,节约法律资源,减少法律的监控成本,促进社会和谐,反映着现代法律的价值取向。

Kant thought that moral was the norm concerning motivation of intrinsic thinking rather than coercive, so moral was self-regulation; while law was the norm concerning the results of extrinsic actions, so law was coercive and heteronomous. The traditional legal heteronomy was established on the basis of the externalism, mandatory and predictability, and this opinion has changed in modern society, such as the law moves towards ego lawmaking from external lawmaking, legitimacy from mandatory, and intrinsic viewpoint from extrinsic viewpoint. Therefore, modern law has both the heteronomy and autonomy. With the development of law-based society and the improvement of the civil quality, the proportion of self-regulation will increasing, while the proportion of heteronomy will reduce. Self-regulation manifests not only the humanistic brilliance, but also legal authority and dignity, and self-regulation builds the sense of trust each other, saves the legal resource, cuts down the monitoring costs, promotes the harmonious society, and reflects the value orientation of modern law.