On the authority of the legal system

Ji Weidong's summary of this article is based on the basic political consensus reached by China at the present stage on the authority of the tree legislation. It analyzes the conditions for the formation and maintenance of authority from the three levels of tradition, justification and adjustment. Restrict the different types of power and institutional design patterns. The author emphasizes that in the current social reality, we should first take full advantage of the adjustment function of the legal norms and then promote the institutionalized argumentative dialogue. From this point of view, the procedural authority with both technical adjustment and opinion argument is the key to the "soft landing" of political system reform, and is the core factor of a sound, stable and legal democratic operation mechanism.

I. Consensus on the rule of law democracy Over the past 30 years, with the gradual expansion of China's political mobilization system, traditional, hierarchical and information-based management have become the focus of power structure integration, and have penetrated and merged with each other. Form a mechanism for comprehensive management of social management. Since the mid-1990s, the diversity of interests and demands of society has been continuously manifested. The new issue of how to coordinate the relationship between various groups has been put on the political agenda, so there is a "three represents" theory and a "harmonious society." The advocacy of the theory attempts to interpret the core values. But so far, the institutional arrangements for coordinating and integrating pluralism have not yet been settled.

In this context, since the mid-2000s, the central deliberation model has been constrained by the principle of intra-party democracy and unanimous consent. Although there is procedural authority to compensate for the gaps in the changes in mainstream values, the principle of procedural justice is not Really implemented, so those cases that are prone to controversy with certain risks are often delayed, and the result is not the result, it is the fall of authority.

To a considerable extent, it can be said that today's China seems to slip into a trap of "zero authority." In order to jump out of the trap, restore and maintain authority, improve the efficiency of development and stable quality, we must promote political system reform and recombine the relationship between coercion and agreement, decision and information. The popular expression is to promote the rule of law democracy in accordance with the steps from the rule of law to democracy. However, as far as the construction of a country under the rule of law is concerned, the authority of the legislative system must first be established.

It may also be considered that the basic consensus reached by the 18th National Congress of the Communist Party of China in late autumn 2012 is to make the economic reform and political reform seamlessly through the authority of the legal system, so that the so-called "collective leadership" becomes a truly collectively responsible form of power. Become a new type of authority that can truly make decisions. Authority, the power that can motivate others to spontaneously accept their norms based on trust. Therefore, authority is the institutionalization of obedience based on legitimacy, rationality and necessity. Authority is not the basis for making choices, but the standard of obedience. The difference between authority and power is that its compulsory must be based on social recognition, thus forming a superior value, leading to spontaneous compliance. From the authority of the people to the authority of the legal system, especially the emphasis on the authority of the legal system on government power and various social powers, this is the essence of the modern law-abiding spirit. The rule of law protects freedom by restricting freedom and forms a state of non-freedom with a sense of freedom. This constitutes a paradox and also dialectic. The key point is that the authority of the legal system can force internalization and become conscious action.

Professor of Shanghai Jiaotong University Law School, doctoral tutor.

2 The report of the 18th National Congress of the Communist Party of China emphasized that it is necessary to "maintain the unity, dignity and authority of the country's legal system and ensure that the people enjoy broad rights and freedoms in accordance with the law." This means that the legislative power should be centralized to "strengthen the organization and coordination of legislative work"; "Any organization and individual cannot go beyond the Constitution and the law." In fact, it is the unification of the legal system with the constitutional norm as the culmination. The realization of the legal authority also requires the democratization of legislation, so the report pointed out that it is necessary to "expand the people's orderly participation in the legislative approach."

Based on the above understanding, this paper makes a detailed analysis of why the authority of the legislative system and how to achieve the goal, and examines and compares the three different types of legitimate mechanisms of convention, reasoning and adjustment functions. How does the authority gained by the procedure limit the arbitrariness of power and explore how the authority of the legal system, especially the procedural authority that balances the reasons and adjustments, is possible and proper in a flat, networked, and gamed context. Deal with the relationship between authority and democracy.

Second, Raz proposition: obeying the conditions of legal authority According to the analysis of the famous contemporary jurist Joseph Raz, let people consciously or unconsciously obey the authority, or in other words, to obey the "legal law", must There are three basic conditions for the following sounds.

The first condition, people are acting in accordance with the instructions of the authority, not only because the authority issued an order, but also because of the existence of reasons for such action. It is one thing to obey the command. It is another thing to think that such behavior should be. There are interdependent relationships between the two different levels of reason. That is to say, the binding force of authority depends on other reasons that the restrained person thinks is appropriate, relies on justification and depends on the inner response. This is called "dependence thesis". Here, Raz not only rejects the stereotype that the law is the command of the sovereign, but also rejects the simplistic and even conservative legal positivist stance, and strengthens the legal system on the basis of rational and thoughtful obedience. Its own authority.

However, if all the orders are to be properly justified at the time of implementation, they must repeatedly give a statement, and they must obtain the understanding and consent of the constrained, and there will be a situation of dispute and self-righteousness. It becomes meaningless. Hannah Arendt even said that authority and persuasion have no chance, and that the authority has disappeared from invisible words when there is a lot of discussion. 4 Nevertheless, the ban is forbidden. This is a normal expression of authority and an inevitable requirement of authority. Therefore, the second condition that can be reasonably inferred is that people should not act on the grounds they deem appropriate, but should obey authority and obey the authority. That is to say, in the decision concerning public affairs, let people put their own right to rational judgment one by one, or the burden of negotiating and reaching consensus on specific cases, partially or even all transferred to authority, more precisely, It is transferred to an authoritative legal institution. In this sense, the authority of the legal system has the effect of simplifying the complexity of society. Authority makes the life of citizens personally simpler, clearer, and more predictable.

Taking such a conscious attitude to follow legal decisions is not a moral call, but a rational trade-off. Because only in this way is it possible to act better according to the reasons that the restrained person thinks is appropriate, and it can save Coase's "reporting costs", and it is possible to truly realize the proper reason. This is the basis for the authority to be justified. . This assertion of Raz is summarized as "normal justification thesis". But the establishment of this proposition is based on the trust of the system or the belief of the legal determinants. Only when people think that the legal system is justified and that justice is justified, only in such an occasion will they give up their chances of negotiating one by one and accept a third party judgment. Therefore, it is necessary for us to consider the degree of trust of the society in the legal system, especially the judges.

To put it another way, the fact that an authority requires or orders an action constitutes a reason for the act itself. This reason can replace other reasons, so that other reasons related to the behavior need not be raised and argued one by one. Therefore, Raz prompts us to "preemptivereasonthesis", which constitutes the third condition of obedience to authority. However, this condition has some meaning of absolute authority. It may not always be approved by most people, and there is no room for further scrutiny. It also overlaps with the second proposition to some extent. Although Raz is somewhat ambiguous about the third condition of obedience to authority, we can further clarify under what circumstances the authority can have the absolute meaning of indiscriminate and succinct, and the so-called "first reason proposition" can be applied.

Of course, we may also limit the conditions for establishing authority to the first two items that are the easiest to reach consensus, namely, the dependent propositions involving reasoning and the usually legitimate propositions involving systemic trust. Standing in such a position to observe the basic principles of the Chinese legal order, you can send 3 to see Joseph Raz's "authority of law." Zhu Feng translated. Law Press, 2005 edition; Explain Joseph Raz, "Authority, Law, and Morality." Liu Ye deep translation. The "Relationships of Law 4" are summarized in the American Republican Arendt's "Republican Crisis", translated by Cai Peijun, Time Culture Publishing Company, 1996, pp. 100-101; He Zhaotian, "The Tort and Unfold of Western Modernity", Jilin People Press, 2002, p. 432.

The traditional system design is in line with the "dependent proposition". For example, in the settlement of legal disputes, strengthen factual cognition and moral discussion, and introduce specific factual relations as well as reasonable and moral discourse into the process of legal reasoning. Try to make the legal decision be made on the basis of understanding and recognition of the parties, and allow the loss of the case. The idea of ​​repenting after the event and invalidating the judgment emphasizes the settlement of disputes through settlement or mediation. The essence is to use a fluid, special "situational ethics" to correct the overall value judgment. But the result is that people take the state of arbitrary behavior on the grounds of self-righteousness or satisfaction, and it also creates a law-abiding dilemma that ignores authority.

The results of sociological research prove that although there is overlap between satisfaction and value, it is essentially different. If the party is satisfied, it does not mean that the proper value has been achieved. Conversely, the value obtained is high and may not be satisfactory. This will inevitably lead to the weakening or even disappearance of the so-called "usually legitimate propositions." In order to overcome such a "one person, one right and wrong" chaos and avoid the dilemma of making decisions, the state has to resort to mandatory power. The result can only be to let power overwhelm authority. Under such circumstances, the most important task we face is to make the legal system authoritative, thus restricting government power and social power, avoiding state affairs that cannot be decided, avoiding endless language games and constantly repetitive arguments leading to order. Fragmentation.

3. The three modes of legal authority are: What should be the legal system and it is possible to authoritatively summarize the experiences and doctrines of ancient and modern Chinese and foreign countries, especially with reference to the Raz propositions on the conditions of obedience to authority and to extend and develop them. The basic ideas, namely, conventions, justifications, and adjustments, may also be understood as three modes of achieving legal authority. Let's take a brief analysis and discussion one by one.

In accordance with Max Weber's idea of ​​the country's type theory, in many cases, the rule of the extraordinary leader is often turned into a kind of traditionally based governance after the decline of charm. 5 In David Hume’s view, the government’s legitimacy may not be based on reasonable design, and the fact that it may come from the exercise of sustainable power itself, from the default and customary after-the-fact ratification, from the nationally recognized authority even reflects In the "hereditary principle" of the Lieutenant monarch. By using Edmund Burke's statement, freedom can also be understood as a "hereditary right" or "heritage." Burke's view of freedom typically exemplifies authority based on historical continuity or traditional legal system. Here, as a basis for legitimacy and orthodoxy, historical and cultural factors are emphasized, while the side of the individual is overwhelmed.

Indeed, the state can be understood as a “imaginary community” (Benedict Anderson's terminology), or an endless organism, composed of people with common interests and beliefs. Of course, there will also be conflicts of interest and opinions between individuals, which need to be adjusted through rules. These rules include political decisions and cultural traditions. The former faces an uncertain future, while the latter focuses on history and accumulated experience, and forms the basis for the legitimacy and certainty of the exercise of power. Therefore, cultural traditions and rituals and habits can constitute a type of legal authority outside the decision of sovereigns, which may be referred to as "traditional authority." In Chinese history, the long-lasting "Tao Tong"

And the legitimacy of the origins is of great significance to a certain generation of government, which fully illustrates the relationship between cultural traditions and authority. Against the background of the above-mentioned ideas, in the middle of the 20th century, there was a dispute over the "legal system" between the Kuomintang and the Communist Party around the Republic of China, that is, the political struggle around the authoritative issue of the legal system.

However, in the era of great changes, historical continuity has been strongly impacted and even interrupted, and the established legal authority is also unsustainable. In this case, the need for new authority outside the traditional authority requires a justification for the authority of the new system. In other words, in traditional faults, the importance of justification will rise sharply. Here, the change of destiny can be a reason, and the protection of natural human rights can also become a specific discussion. See Demax Weber: Economics and Society, Lin Rongyuan, The Commercial Press, 1997, 242, 446 . Contrasting with it, St. Alexander Koyev proposed the classification of leader authority, father authority, master authority and judge authority in the Concept of Authority (Jiang Zhihui, Yilin Press, 2011).

6 See David David Hume's "The Selection of Hume's Political Papers", translated by Zhang Ruoheng, and the 14th edition of the 2010 edition of the Commercial and Labor Press, "On the Original Contract." For the theoretical background, see Gao Quanxi, "The Political Philosophy of Hume," Peking University Press, 2004.

7 ed. Monbeck, "The French Revolution". He Zhaowu and other translations. Commercial Press, 1999 edition. Page 27. Especially on page 28. The overall image of political thought. See Chen Zhirui, Shi Bin, ed.: Edmund Burke Reader, Central Compilation Press, 2006 edition.

For Chinese legal reasons, the social contract can be a reason, and the choice of the people can certainly be a reason.

Some reasons are related to core values ​​and belong to the category of ideology. It goes without saying that ideology is also the basis of legitimacy. Even the most fundamental value-based ideology of the state order is the grand narrative of historical and moral meaning. As long as it is recognized and supported by the majority, it has authority. The ideological revolution can lead to the essential changes in the argumentation, but the authority based on ideology is more about identity and belief than on justification. In many cases, the boundary between the existing authority of authority and traditional authority is fluid. Even the dogs are staggered.

Obviously, another model for realizing the authority of the legal system is the justification argument, which may be referred to as “rational authority”. The social contract theory that reasonably explains the nature of modern state power and its inherent logical relationship can be regarded as a typical manifestation. Rousseau's doctrine deducted such reason arguments to the extreme, reverting the social contract ideas to the concept of "public will" and the mutual understanding and construction of individuals. 8 The more general form of this type is practical rationalism. At the level of political philosophy and legal philosophy, it is required to give appropriate reasons for individual behavior and national norms, explaining what is justice, what is good governance, and Judgment and choice based on the argument.

This type also has a special form of expression. This is the basis for political achievements as a basis for argumentation. China has been prevalent since the 1990s. However, the performance authority is constantly under pressure to fulfill its commitments, so its foundation is fragile. The market economy is bound to accompany the boom cycle, it is easy to authorize the performance of the intangibles, and the bottleneck problem that restricts development will sooner or later make the performance authority go from prosperity to decline.

To a large extent, the authority of the legal system is to entrust the individual to judge and choose the specific circumstances to entrust the legislature and the judiciary to exercise, so that citizens can consciously obey the legal decisions. From the perspective of practical rationality, the commission of such transfer of judgment is of course not unconditional. It is necessary to give sufficient reasons for citizens to regard the legal system as an authority and to be convinced. The first reason that can be enumerated is of course that the relevant state organs have more knowledge and information than individuals, and thus can make better judgments and choices. Plato's "philosophical king" and Zhuangzi's "inner and outer king" advocated the rational authority rather than the real power.

In the imperial era of China, the selection of outstanding talents through the imperial examination system served as the literati bureaucrats further strengthened the atmosphere of the predecessor's formation of "being a teacher", that is, to establish rational authority through the advantages of intelligence and knowledge. In contemporary China, the court enjoys a huge right to inquire, and is in charge of judicial appraisal institutions, strictly controlling the scope and quantity of information circulation. In fact, it is also necessary to maintain rational authority by virtue of certain information advantages artificially created and strengthened. It can be seen that information strategy, especially the combination of information and coercion, is of great significance to the establishment and maintenance of authority. However, in the era of high awareness of democracy, information explosion, and transparency, the information superiority of the relevant state organs has been greatly reversed, which puts higher demands on the argumentation. Therefore, Jürgen Habermas particularly emphasizes that in the event of a crisis in the authority of the legal order, communication must be strengthened. To this end, it is necessary to form ideal conditions for dialogue and to present ethical requirements for arguments. * Among all state organs, the courts are most concerned with the reasons. Argument. Of course, legislation will also require justification. However, in the process of negotiation and majority decision of different interest groups, legislation is full of opportunities for political compromise. Major administrative initiatives are also accompanied by justifications, especially in the context of feasibility reviews and public hearings. However, the administrative department pays more attention to efficiency and policy measures that suit local conditions and adapt to the times. In any case, the argumentation is the soul of the court. Therefore, we call the court "the hall of reason", which is the embodiment of rational authority. From the defense to the verdict, from the lawyer's statement to the judge's opinion, the whole process runs through rational torture. In this sense, it can be considered that the trial court is the most ideal venue for dialogue, and the court is the best forum for realizing the authority of the legal system through reason arguments. Therefore, in the era of communication, the importance of judicial power should be greatly increased.

If we grasp the authority of the legal system from the perspective of justification, then we can all presume that without the dignity of the judge, the independence of the judgment, the authority of the legal system cannot be discussed. On the other hand, if the court has obvious and serious defects in the argumentation, then the rational authority of the legal system will be hurt or even lost. At this time, the solution of the problem often has to depend on the relationship of power. The parties, especially the related eight, are full of information. For the latest information, please refer to Zhang Hengshan's "Rousseau and Social Contract Theory", People's Publishing House 2010 edition.

More than 9 English-hours, "The Han Dynasty's Circulation and Cultural Communication", Modern Interpretation of the Ideological Tradition of the Republic of China, 1987 edition of the Journal of Publishing House, 21010, see Deugan Habermas, "Legalization Crisis", translated by Liu Beicheng, Cao Weidong, Shanghai People's Publishing House, 2000 edition; De Yougen Habermas, Theory of Communicative Behavior, translated by Cao Weidong, Shanghai People's Publishing House, 2004.

If you are a weak person in society, you will feel that there is no way to ask for a reason, and there is no reason to go to the outside of the system and even other countries to find the necessary relief.

In addition, the justification of the rational arguments pursued can be intertwined with the “Sollen” authority and rational authority, and even penetrate each other. The intervention of traditional factors will cause some changes in the justification, recombining universality and The relationship between particularity, rationality and mutual sympathy, positive and good, highlights the boundary of reason. Therefore, we also need to find a more certain, more technical, and more unquestionable basis for the legal authority. This is the adjustment function of the legal system.

There is also a model for realizing the authority of the legal system, that is, the society needs the state to solve the adjustment problem, which may be referred to as “the step-by-step authority”. If individual behavior is not predictable if it lacks rules, it will easily lead to contradictions and conflicts, and increase the risk of society. Therefore, in any case, society needs to clarify certain standards and directives to adjust behaviors so that they never Order to order, from uncertainty to more certain. In this sense, the legal system gains authority to play its adjustment function, and can smoothly adjust the relationship between different interests and values ​​because of authority. This kind of Qibu authority is taken for granted, self-evident and objectively needed.

The adjustment function of the legal system is typically reflected in the formulation and implementation of traffic rules. Whether the vehicle is left or right, whether the small turn has to wait for the green light, the straight traffic priority or the transfer priority, and the speed of the expressway is 80 kilometers or 100 kilometers, there is no right or wrong.

The traffic rules do not reflect the class interests, but also have nothing to do with the national ideology. They are just technical arrangements that avoid conflicts and guarantee security by defining behaviors. Obeying traffic rules can reduce accidents, save energy, and improve the certainty and efficiency of access. Therefore, in terms of traffic management, Qibu authority should be produced with the need for adjustment. As long as the regulations are clearly defined and strictly enforced, the society's expected goals can be achieved. Therefore, the traffic command is most consistent with the “first-chosen proposition” traffic rules that Raz said. The effectiveness of the traffic rules is most likely to be rigid. Absolute. *But for a long time in the past, even the authority of traffic rules has not been established. In the event of traffic violations, law enforcement police often encounter human dilemmas. The perpetrators often call the acquaintances and relatives in the public security department or the government to help pressure the police at the scene. Under such circumstances, the adjustment function of the legal system cannot be functioned properly, and the simple violation of the rules is transformed into complex emotional problems, face problems, attitudes toward leaders, and even ideological problems, entangled with the should, tradition, and justification. Together, it is very tricky to solve.

In the end, I had to use the "private" way to block.

In the place where the "private" is recognized, the authority of the step is gone. In the same way, in places where excessive emphasis is placed on mediation and compromise, the legal system cannot fully exert its adjustment function and obtain the same authority. It goes without saying that if even simple law enforcement actions such as traffic rules are subject to value judgments, how can the authority of the entire legal system be established? If the legal system and technical adjustment functions cannot be successfully carried out, the authority can be pushed from On the other hand, when the issue of legal system adjustment is not handled well, then the ruling crisis will not be too far away. However, what needs to be further questioned is why there are such strange things in China. In fact, China’s traditional thinking has always attached great importance to the function of legal adjustment. For example, the pioneer of the legalist pioneer who advocated the Qimin route in the pre-Qin period has long pointed out: "A rabbit walks, 100 people follow it, and the rabbit can be divided into hundreds, and the name is undecided. The city, and the thieves dare not take it, the name has been fixed and the name is undecided, and the soup and the soup are all in the same place; the name has been fixed, the thieves are not taken....

If the name is fixed, then the big bluff is believed, the people are willing to swear, and the autonomy is also. The name of the aunt is divided, and the way of the rule is also; the name is indefinite, and the way of chaos is also ". However, after the ritual law" and "chundi imprisonment" in the Western Han Dynasty, the disputes and arguments are justified. The two different modes of authority and rational authority are intertwined, and the relevant arguments are entangled with morality, reason and even historical traditions. The result adjustment function becomes an appendage of the justification and historical tradition. The judgment of sexual value overwhelmed the rationalized technical treatment. It should be confused with the adjustment without distinction. This is the crux of the dilemma of China's legal system.

The good news is that under the top-level design and top-level promotion, the traffic management system began to change substantially from the end of 2012.

period.

The large-scale rectification of traffic order in China's jurisprudence has been successively introduced. The most stringent traffic rules in history have been in effect since the New Year's Day in 2013. It can be seen that the Chinese government has begun to consciously and purposefully strengthen the adjustment function of the legal system, so as to effectively cultivate the legislative authority and cultivate Awareness of law-abiding for the integration of the whole people.

Therefore, we have reason to be cautiously optimistic about the future of the rule of law in China.

IV. Obtaining authority through procedures Although the various legal procedures also contain the content that should be ought, the main reason is to solve the adjustment problem. The reason argument is also realized through the confrontation debate on the basis of the adjustment function. The procedural adjustment function is to let different appeals, claims and value judgments compete under the conditions of reciprocity, so that the most convincing, most supportive or expertly approved option becomes the result of legal decision, so that the judgment Have a rational authority. The procedure that can make full use of this adjustment function is called the fair procedure, and the fair procedure itself has the same authority, so that the parties can be equal in legal arms. The special emphasis on the important significance of legal procedures is to transform the problems of complex problems and even traditional authority into adjustment problems to a certain extent, and try to resolve them under the conditions of technicalization and rationalization. Difficulties. Therefore, the program authority has both the adjustment function and the reasoning function.

In other words, the principle of judicial independence, the principle of procedural fairness, etc., are actually established to solve the adjustment problem, and the judges are very similar to the police who enforce the traffic rules, and should first have the same authority. In the case that the independence and neutrality of the trial cannot be guaranteed, the case-handling judge can easily receive the leadership approval for intervening in the trial. The embarrassing situation is the same as that of the police who deal with traffic violations. At the same time as a person who violates the rules, he has to open the side of other violators. This is equivalent to signaling that trampled on traffic rules. Similarly, if a judge cannot stand in an independent and neutral position and cannot handle disputes in strict accordance with the law, then his impartiality is bound to be doubted, the trust of society is bound to decline, and the authority of the legal system cannot be discussed. .

In the late 1980s, Professor Tom Taylor conducted an empirical study of the relationship between legal authority and procedural justice. The main method he adopted was “panel design”, which was repeated interviews with the same group of people after the group to observe the relationship between changes in the program experience and changes in the dependent variables. In this study, Professor Taylor first controlled the pre-evaluation of legal authority and then consulted 804 residents of Chicago on the authority of the legal system twice. The two interviews were separated by one year and became the residents of the survey. During this period, 329 people had personal experiences dealing directly with the law-related authorities such as the police and the courts. Therefore, they raised various questions and asked them to handle the cases according to their personal experience and feelings. The fairness is evaluated. The results show that pre-existing attitudes have an impact on post-evaluation of procedural fairness. More importantly, the fairness of the procedure largely determines the attitude of obedience after the fact. In this sense, it is also worth mentioning that the authority of the legal system is to a large extent the procedural authority.

According to the experiments and analysis of psychologists, the legal organs must use fair procedures to reduce the hostility of the offenders. If people believe that the trial process is impartial, the application of the law is objective and fair, and even if they are judged unfavorable, they will continue to support. Court. In this sense, it can be said that the fair procedure has a buffering effect, and it can effectively prevent the attacker from directly targeting the system because of the conclusion that the party is not satisfied with the judgment. Fair procedures can also increase satisfaction with the legal experience, strengthen the understanding of the legitimacy of laws and judgments, and promote obedience, thus maintaining the authority of the legal system. In other words, there is a close causal relationship between procedural fairness, justified cognition, and obedience to the law. The control and the right to speak of the decision process by those affected by the law are the main factors determining the subjective feelings about the fairness of the procedure.

Needless to say, the traditional Chinese order principle is characterized by only asking results and disregarding means. People are more emphatic about substantive value judgments than procedural fairness. In this context, the authority's foothold is often a specific “good” denying that since the mid-1990s, China's social structure has undergone essential changes, and diversity has become more and more significant. Facing interests and values. The reality of diversification has been unable to continue to pursue the consensus based on specific values. On the contrary, it has to resolve value conflicts through value-neutral procedural rules and communication behaviors, and to be able to be understood by the majority in the handling of public affairs. And support decisions. See only Ji Weidong, The Meaning of Legal Procedures (updated version), China Legal Publishing House, 2012, p. 115.

When the principle of procedural justice has an advantage over the purpose and means, the uniqueness of value does not swell to the point where it does not allow society to freely choose and rationalize choices. In this context, programs, only programs can establish new authority.

Through the authority established by the program, it is inevitable to continue to accept the test of the justification process, which also means taking the power to maintain authority. Institutional design based on the principle of procedural fairness contains an implied premise that the diversification of values ​​emphasizes procedural fairness, that is, to prevent certain values ​​from being in a position of exclusiveness, and to allow different value appeals to be in ideal dialogue conditions. Free and equal convincing competition, through reason arguments to reach consensus and make decisions. In the sense of preventing a certain value claim from being arbitrary, the procedure is mandatory, and this force is achieved through the same authority. However, in the point of ensuring the expression of various value appeals, the essence of the procedure lies in the freedom of information disclosure and freedom of speech. It has obvious rational authority. The principle of procedural justice is to optimize the combination of information and information. It is also the construction of the complementary relationship between Qibu authority and rational authority.

It goes without saying that legal procedures, especially trial proceedings, are always combined with justification arguments. This means that in the legal system, the three elements of procedure, discussion and consensus can be properly arranged and combined to form a structure of “three-for-one”. On the other hand, various procedural rules mainly play an adjustment function. As long as the procedural rules are clear, different claims can be used to synthesize public choices in an orderly manner. It is precisely because of the principle of procedural justice and the corresponding existence of the same authority that people are willing to accept the judgment of the third party of the court. The so-called "usually legitimate proposition" of Raz can be established. It is precisely because the fair procedure plays an adjustment function that the court can enjoy the final judgment and the res judicata. Raz’s so-called “first-choice proposition” will not lose its reality.

In this sense, we may wish to argue that Raz’s second and third propositions on the authority of the legal system can only be understood from a procedural perspective, in order to explain the similarities and differences between the two, in order to clarify the mutual Contact and interaction. That is to say, the program is the program that links the “usually legitimate proposition” with the “first reason proposition”, thus ensuring that the “dependent proposition” is dependent and will not fall through. This fully proves the special value of the program authority for the authority of the tree legislation.

V. Legal Authority and Democratization Some people may oppose authority and democracy, because the orderly state of authority and the egalitarian tendency of democracy are mutually exclusive. But this view is actually wrong, at least one-sided. The essence of authority is obedience, especially conscious obedience. The essence of democratic politics is that the minority obeys the majority and also emphasizes obedience, especially conscious obedience. Therefore, authority has a close correlation with democracy. Democracy may lead to very strong authority, so that no enforcement of force is required (in the case of rational authority), or even arguments are not allowed (in the case of Qiqi authority) But it can make people obey in a state of freedom. Authority gives power to morality, and democracy has great moral power. Morality gives power to energy, which comes mainly from the people and from democracy. Even we can say that democracy is more authoritative than any other system; without authority, democracy cannot be stable, it is impossible to continue, and in some cases it is impossible to make a decision.

法制权威对民主的重要意义在于提供社会信任。这种信任来自对权力的有效节制，也包括对获得民意支持的领袖的巨大权力以及多数派专制的节制。这种信任也来自行为与制裁之前可预期的关系，来自强势群体与弱势群体、政府与个人在法律面前享有不受力量对比影响的平等性。没有这样的信任，当权者对下台后遭受报复和清算的担忧就会成为挥之不去的梦魇，政权交替就会变得困难重重。没有这种信任，民主就很容易流于情绪化的民粹主义，或者在舆论被撕裂、对立者势均力敌的情况下无法作出合理的公共选择，甚至无法维护国家的统一和稳定。在美国，如果总统选举的投票结果存在质疑，那就会由法院出面来一锤定音、化解政治危机。

反过来看，民主对于法制权威的树立也具有重要的意义。在少数专家学者、议员、官僚、律师等参与下人为制定的法律规则之所以具音正当性、权威性，首先因为客观需要和经过了理由论证，但更根本的还是因为以不同方式反映了民意。在现代社会，法律的正当性主要来自通过投票行为反映人民意志的民主程序，因此可以说民主是法制权威的基础。民主政治对政府权力的程序性制约也使得法律面前人人平等原则获得现实的力量，使得法律的实施获得强大的保障。在比较成熟的民主政体下，法制的权威可以大幅度强化并长期维持，形成和谐稳定的秩序。

中国法学对于司法究竟是权力还是权威，在法学者当中倒是一直存在着争论。在孟德斯看来，司法与立法、行政同样，都属于国家权力的范畴。但亚历山大汉密尔顿认为，在三权当中，司法权的危害性最小，而道义性最大。由此可以推论：司法可以主要理解为权威。因为司法以程序保护规则、保护合意，总是参照规则和原则作出决定，比较容易得到承认和接受。作为权威的司法机关，当然可以制约权力，可以通过确保法律主体连续性的方式确保民主政治的健全性。但是，司法这种权威毕竟是比较弱势的，需要借助某些方法来加强其力量。*为了提高司法以权威制约权力的实效，把司法与民主进一步联系在一起、打民意支持牌就成为人们跃跃欲试的选项。近些年来中国的“司法民主化”也不妨在这样的脉络中来理解，很多法官似乎耐不住寂寞、经不起大众欢呼和喝彩的诱惑。

运用前面提出的关于法制权威的分析框架，可以发现当今中国的所谓“司法民主化”命题的最大特征，是把审判权与调整问题切割开来，让法院直接面对应然问题。民主的核心问题是由谁决定、由谁做主，取向是多数派说了算。因此，司法民主化意味着审判主体不限于职业法官，还包括一般公民，并且让个人权利的认定服从多数派的意志。在审判主体多元化的延长线上，围绕不同价值的议论势必活泼化，有利于理性权威的树立。然而在这里，法官或多或少要带上主张的党派性，很难保持中立和客观，从而不具音解决调整问题的优势，结果是牺牲了齐步权威。有些人则是有意借助舆论来逃避法律和上级审的制约，试图以民意的名义来获取更大的裁量自由。

一般而言，司法的核心问题是严格遵守法律的正当性何在，取向是把法律理解为一般民意的表达。

因此，强调司法的民主化，就意味着用特殊的、局部的民意（一时一地的舆论）来检验和修正反映普遍的、整体的民意（国家法律）。在这里，法官不得不跳出现行法律的框架来创造能让当事人以及地域共同体满意的规范，不得不把政治性妥协的契机和偶然性嵌入司法过程，其结果，法律势必出现各种地方版本个案版本，乃至碎片化。于是我们可以看到两种民意一立法上的民意与司法上的民意的对峙格局，可以看到审判人员甚至有可能以民意或者当地舆论的名义无视现行法律体系、突破审级制度。阿伦特早就指出过，权威是以等级结构为前提的。在审级制度被否定、群众意见优越于法律制度（借助卢梭的表述，就是人民公意）、不同层面的民意互相冲突的场合，就会出现权威扫地的事态。

应该树立这样的观念，立法权基于民主原则，因多数人支持而获得权威；而司法权则应坚持独立原则，因客观、中立、公正而获得权威。没有独立司法的权威，我们就无法把个人的自由和权利从多数派专制的危险和混沌中拯救出来。概而论之，按照制度设计的理念，立法机关总是站在多数人一边，而司法机关则要站在少数人立场上来行事，通过公正程序和严格适用规则来保护少数人的利益或诉求。在法院，任何个人都应该得到平等的对待，法官必须耐心地倾听每一当事人的声音。如果言之成理持之有据，少数派或普通个人应该获得胜诉的判决。因为这个判决是在考虑了案件的具体事实和特殊情况、他的具体诉求之后作出来的，可能会对法律是一个补救，对执行多数人或强势者意志的行政机关举措是一个矫正。由此可见，司法机关是可以对立法权、行政权进行制衡和某种纠正的，审判也可以成为弱势群体、少数人乃至个人推动社会进步、推动制度变迁的渠道。

六、结语综上所述，今后中国的政治体制改革应该采取从法治到民主的路线。本来法治与民主是相辅相成的，没有民主就没有一视同仁的、有效的法治，没有法治也就没有成熟的、稳定的民主。尽管如此，为了在当今中国的现实条件下使政治体制改革“软着陆”，还是必须对两者加以区别，确立先法治、后民主的参见法孟德斯鸠《论法的精神》（上卷），许明龙译，商劳印书馆2009年版，第167页。

详见汉密尔顿等《联邦党人文集》，程逢如等译，商劳印书馆2004年版，第78睡1安托万噶拉邦《司法活跃的民主主义》，河合干雄日译本，劲草书房2002年版，第41页；美斯蒂芬布雷耶《法官能为民主做什幺》，何帆译，法律出版社2012年版，第5页。

优先丨丨顺序。按照这样的思路，在现阶段应该大树特树法制的权威，特别是齐步权威和理性权威。从理论和现实可以看到，通过严格执行交通规则和严厉惩治腐败行为可以树立法制的齐步权威，而坚持审判独立和程序公正的原则、以法律解释共同体限制裁量权等一系列司法改革的制度设计则可以树立法制的理性权威。在这些改革奏效之后再大力推动程序民主，并使民主扩大到政治生活的各个方面，我国的转型就将水到渠成。

（责任编辑：李小明）

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