超越“权威悖论”的司法权威

On Judicial Authority beyond the Paradoxes of Authority

拉兹指出存在“权威悖论”,并企图通过“理由论解释”路径证明权威与自治之间是相容的,因而“悖论”可解。然而此论证存在诸多未解之惑,出路在于拉兹解释中暗含的“关系”范畴。权威是一种特殊的社会关系,在此关系中,权威者拥有令服从者服从的力量,此谓“主体权威”。只有当权威者与服从者之间具有利害冲突或意志相异性时,主体权威才具有消极作用。司法机关作为权威者,与当事人之间没有利害相关性,他们的意志是一致的而非相异的,并且司法权威以“客体权威”——法律权威——为依据,而法律及其权威具有正义性,因此,司法权威具有正义性。

Raz pointed out the existence of“authority paradox”and tried to prove the compatibility between authority and autonomy through the path of“reason-based explanation”so that the“paradox”can be solved. However, there are many unsolved puzzles in this argument, and the way out lies in the implicit“relationship”in Raz's interpretation. Authority is a kind of special social relation, in which the authority has the power to make the subservient obey, which is called“subject authority”. Only when there is a conflict of interest or difference of will between the authority and the subservient, the subject authority will have a negative effect. The judicial organs, as the authority, have no interest relation with the parties, their will is consistent and non-dissimilar, and the judicial authority is based on the“object authority”, that is, legal authority. The law and its authority are of justice, and therefore, the judicial authority is of justice.