从强契约、商谈可接受证成法律之为制度修辞

Institutional Rhetoric from Strong Contract and Negotiation of Acceptable to be Justified as Law

社会契约论是近、现代民主法律制度的基础性观念。但如果着眼于人类历史长河来考察,社会契约可以一分为二:即前现代社会的"弱契约"和近、现代社会的"强契约"。所谓"强契约",是建立在主体商谈基础上的契约。其可接受性,也来自主体间的商谈实践。法律既然是商谈实践的产物,是商谈共识的结果,则法律也因之获得了制度修辞的属性。所以,强契约及商谈可接受这些概念,在逻辑上为法律之为制度修辞找到了证成根据。

social contract theory is the basic concept of modern democratic legal system.If we look at the long history of human being, we can see that social contract can be divided into two parts： the weak contract in pre modern society and the strong contract in modern society. The so--called strong contract is a contract established on the basis of subject negotiation. Its acceptability also comes from the practice of negotiation between the subjects. Since the law is the product of the practice of negotiation, it is the result of the consensus of negotiation, and the law also obtains the attribute of the system rhetoric. There- fore, strong contract and negotiation can accept these concepts, and logically find the basis for the legal system rhetoric.