从制度修辞视角看法律信仰

法律能否被信仰?这是国内法学界近二十年来持续关注的一个重要理论争点。尽管法律信仰的理论有演化为意识形态的倾向,但法律信仰论自身是一种严谨的理论论述。法律信仰的论述理据,不应仅仅是伯尔曼所强调的法律与宗教在某种意义上的契合性或相似性,而且还在于即便完全不受宗教影响的、世俗化的法律,作为一种价值体系、传统、"事物规定性"的规范表达以及舍此无他的利益获取机制的内在禀赋。法律在实质上是基于价值、事实以及与此相关的利益的博弈结果或博弈的规范表述,是一种制度修辞。人们对一种制度修辞抱持不尽的热忱和追求,恰如人们虔信、又热忱地追求同样是一种修辞预设的上帝一样。所以,从制度修辞视角看法律信仰,饶有兴味——法律、法治本身是信仰的事业。

The Belief in Law from the Perspective of the Rhetoric of System

Whether the law can be believed in has been an important theoretical argument concerned constantly by the jurisprudence academia for nearly twenty years in our country. Though the belief in law has tendency of being evolved into issues of ideology, the belief in law itself is a rigorous statement of theo-ries. The argumentations for belief in law lie in not only that law and religion has some agreement or similar-ities proposed by Berman, but also lie in the innate endowment of law as the value system, tradition, and normative expression of regulations on things and as mechanism of interests acquisition, which is secularized rather than subject to religious influence. Law in nature is a normative expression based on value, facts and relevant gaming results or gaming of interests, which is the rhetoric of system. People are constantly pursu-ing rhetoric of system with endless passion just as their pursuit of God which is also a rhetorical premise. Therefore , it is rather interesting to observe the belief in law from the perspective of rhetoric of system since law and the rule of law themselves are causes to be believed in.