论作为“无支配自由”的法治——合法性原则及法治的条件

On the Rule of Law as Non-dominant Freedom——The Principle of legality and Condition of Rule of Law

法治相对于人治的优点在于免于专断,它许诺了一种无支配自由的理想,从中可以导出以共同善为旨归的实质合法性原则,否则法律本身就成为专断的表现,从而远离法治的无支配理想。另一方面,祛除专断要求在程序上克服不受控制的权力实施,法律统治的可能性因而要依凭政体形式、权力制衡、程序论辩等制度条件。此外,由于专断具有不可问责的特征,因而法治的实现还要求公民能够信任法治并透过行动对官员积极问责,这可称之为法治的文化条件。最后,法治在其性质属性上具有政治善、共同善、基本善以及内在的善之多重面向,这强化了无支配自由作为法治理想的吸引力,特别是对现代多元社会的普遍吸引力。

Compared with the rule of man,the advantage of the rule of law is that it makes people free from arbitrary.It promises an idea of non-dominant freedom,from which the principle of substantive legality based on common good can be derived,otherwise the law itself becomes a manifestation of arbitrariness,thus far away from the rule of law.On the other hand,the removal of arbitrary requirements requires overcoming uncontrolled excise of power in procedure,thus the possibility of rule of law must rest on institutional conditions such as polity regime,the check and balance of power,procedural argument and so on.Furthermore,because of the unaccountability of arbitrary decision,the realization of the rule of law means citizen can trust in the rule of law and make officials being held accountable for them through action,which could be called the culture condition of rule of law.Finally,the rule of law has attributes of political good,common good,basic good and intrinsic good in nature,which strengthens the desire for the idea of non-dominant freedom as the conception of rule of law,particularly to modern pluralistic society.