法治价值论

法治这个概念所蕴含的理念应该是具有一般性的,即排除人治的专断、维护个人自由权利、政府依法行事而且其本身受到法律规范以及守法作为一种道德承担。由此,法治的实体价值就是由法治所决定的法律在目的和后果上应遵循的社会原则,包括正义原则、自由原则和平等原则;法治的形式价值则是指向法律本身,是从法律的内部规定的具体原则和标准,包括法律至上原则、法律的普遍性原则、法律的可操作性原则、法律的程序正义原则等。法治的两种价值在取向上存在差异,这种差异决定了两者不能相互取代,不能只从一个方面去把握法治的内涵,但是两者在法治这个统一体中又是相互联系的。因此,法治应是实体与形式的统一,是人类法律、社会实践所追求的共同目标。

On the Value of Ruling-by-law

The ideal and conviction of the concept of ruling by law should be general, namely, excluding the arbitrariness by the ruler, protecting the individual rights of freedom, making the governments (which should be regulated by law) settle the issues complying with the law and considering the law-abidance as a moral responsibility. Thus, the substantial value of ruling-by-law is the social principles, including that of justice, of freedom and of equity, which are observed by the law determined by ruling-by-law in both objective and consequence. While, the formal value of ruling-by-law refers to the law itself, and it contains the concrete principles and standards, covering the principle of legal supremacy, of legal universality, of legal manipulatibility and of procedural justice. There exist some differences between these two values, which determine that they should not be substitute for each other or that the connotation of ruling-by-law is grasped with a one-sided point of view, but they both have interrelation in the unity of ruling-by-law. Therefore, ruling-by-law should be unified by its substantial and formal values, and be also a common objective being pursued by the law as well as the social practice of mankind.