评法律实证主义

法律实证主义是西方一种源远流长、影响深广的法理学学说。当代政治哲学家、法理学家哈耶克、德沃金对法律实证主义、尤其是对凯尔森和哈特的法律实证主义观点进行了严厉地批判。在中国,虽然法律实证主义没有正式存在和流传,但类似的观点却广有影响。为了把中国建成现代化的法治国,应当借鉴、学习先进法治国的经验,肃清法律实证主义的影响。     

罗尔斯、哈耶克、德沃金的理论比较——以分配的正义理论为视角

不同的社会形态有不同的分配结构,而何种分配方式更为正义?进而说,现代福利国家的分配方式是否合理?对此问题,西方三位伟大的思想家罗尔斯、哈耶克与德沃金各有相关表述.罗尔斯的理论最终归结为两大原则,即机会平等和差异平等原则.德沃金对此理论作了继承和发展,提出了其有名的"对人的关心和尊重"的权利理论.而哈耶克的理论看似与罗尔斯分配理论同源,实则相悖.因为,罗尔斯的分析虽然在表面上与哈耶克的自然模式相仿,但实际上,它更符合建构模式的精神.     

自由秩序 --解读哈耶克的普通法法治观

哈耶克认为,法治是一种自由秩序,法治之法即自由的法律是真正的法律,这是一项为人们普遍接受的原则,是元法律规则.法治之法的原则要素为法的一般性与抽象性,法的公知性和确定性及法的平等性.他认为,导致拥有如此属性规则的所有原因和因素不可能为人所知,但我们能够作到的应当是努力去发现和理解其实际的一般性功用和一般性目的.法治所处理的是个体自由与社会秩序的关系问题,二者的进化过程及其相互关系主要受制于不断开放和演进的市场秩序,而不断扩展的市场交换和不断演进的传统秩序又推动了法治化进程.进而言之,"自生自发"的社会秩序在本质上是一自由秩序,这一本质上自由的社会秩序在其进化过程中型构了法治,同时,法治在其型构过程中为其相伴的自发的自由社会秩序提供了必要的制度条件和秩序保障.他认为,人和组织与规则体系在社会互动中相互影响制约,普通法法治秩序就是这样成就的.其法治观为自由主义的、进化论的普通法法治观,是形式法治与实质法治相结合的模式.     

Why outcomes matter: reclaiming distributive justice

ABSTRACT

A significant strain of libertarian thinking is hostile to the idea that distributions of wealth and/or income (economic outcomes) can be judged according to antecedently determined normative standards. The general conceptual argument can be seen in the works of F. A. Hayek and Robert Nozick, both of whom argued that when governments step in to adjust outcomes, they coercively and intentionally distort the terms on which individuals make their individual decisions. By contrast, the coercion that comes with market exchanges, in that it is beyond the intentions of market actors, is not an affront to freedom, rightly understood. The proper role of government is thus to protect these exchanges (economic procedures) and leave outcomes – whatever they are – unaltered. I argue here that this critique of distributive justice turns on a false distinction between economic procedures and economic outcomes, and that reconceptualizing this distinction allows us not only to overcome objections to outcome-based distributive justice, but also to reconsider how the legitimacy of a system of ownership is determined.     

Should liberals sometimes prefer dictatorships to democracies? A closer look at the Hayek thesis

Is liberal autocracy preferable to illiberal democracy, as Friedrich Hayek forcefully argued? This article examines two main problems with this argument. First, it seems counterintuitive for autocracies to be combined with liberalism, or for democracies to exist without essential liberal freedoms. Second, it is difficult to establish sound criteria for when a particular democracy is inferior to a given dictatorship. Since there is a difference between those types of liberal freedoms that are sometimes protected in dictatorships and those that are (almost) never protected, assessing the quality of liberties brings us closer to a solution on both issues. It is argued that whether an autocracy can be genuinely liberal, and whether liberals should sometimes prefer autocracy to democracy, depends on how we rank economic freedoms compared to other freedoms.     

作为自发秩序的“人肉搜索”——哈耶克二元社会秩序观的进路

根据哈耶克之二元社会秩序观,社会秩序可类分为自发的和建构的;根据其二元社会秩序规则观,社会秩序规则可类分为内部规则与外部规则。其中,自发秩序由内部规则调整,建构的秩序则由外部规则调整。“人肉搜索”作为一种自发形成的信息供给渠道、非主流的社会控制方式和后现代的权利救济机制,其生成具有深远的法社会学根源,属于哈耶克所谓之自发秩序,应以诸内部规则加以调整,但排除刑事规则,尽管哈耶克认为刑法属于内部规则。     

哈耶克思想在台湾的传播

哈耶克思想在台湾的传播始于20世纪50年代初,一开始是作为一位“反极权”的冷战英雄被接受。随着对哈耶克理解的深入,台湾学术界针对哈耶克“自生自发秩序”的理解出现了明显的分歧。周德伟的解读代表了哈耶克思想保守主义的一面,而殷海光则试图将对哈耶克的解读导向一种“后五四精神”,林毓生在综合二者的基础上,提出中国文化的“创造性转化”的概念。     

哈耶克与欧肯的竞争秩序观及其意蕴

奥地利学派代表人物之一弗里德里希·奥古特·冯·哈耶克（Friedrich August von Hayek）和德国弗莱堡学派代表人物瓦尔特·欧肯（Walter Eucken）对市场竞争有着许多真知灼见。其出发点是维护个人自由,充分发挥市场经济的活力,把竞争视为通往繁荣的必由之路。其竞争观对各国制订和推行竞争政策有着重大的意义。本文重点在于梳理哈耶克和欧肯的竞争观。全文总结和分析哈耶克和欧肯对＂竞争＂和＂垄断＂的总体看法,哈耶克有关作为发现程序的竞争观与欧肯形态学视角的竞争观,两者对竞争秩序的设想,以及＂划地为牢的垄断＂和＂基于高效率的垄断＂的具体态度。在此基础上,本文提出了哈耶克竞争秩序观对中国改革的意蕴,认为我国要以某种普适方式推行一种哈耶克-欧肯意义上的竞争秩序。     

Evolution and the Production of Rules—Some Preliminary Remarks

The notion of an evolutionary process was not imported from biology into social theory. The idea of spontaneous processes producing an unintended outcome was commonplace in the social sciences long before Darwin (Scottish Enlightenment).At whatever level an evolutionary perspective may be applied, it always presumes the operation of three mechanisms: (a) a mutation mechanism, i.e., a process by which constantly variation and novelty are introduced—in Popper's terms: new tentative solutions—(b) a selection mechanism, i.e a process of systematic selection among the variants—in Popper's terms: a process of error-elimination—(c) a replication mechanism, i. e., a process by which variants or tentative solutions are preserved, reproduced or propagated.Although both economists and biologists resort to equilibrium explanations—because a full and detailed specification of all causal forces cannot be given—the analogy between natural selection in biology and evolutionary processes in human societies is not that close.The selection mechanism that is operating in cultural evolution works directly on the behaviour pattern itself, i.e., on the rules that govern behaviour, without necessarily wiping out unfit carriers. Moreover, cultural evolution—which is a matter of trial and error learning and imitation—is very fast when compared with genetic evolution.Hayek works out the implications that follow from an evolutionary epistemology for the issue of socio-economic-political organization. His main subject is the social dimension of the knowledge problem or the problem of social learning. This problem has two distinct aspects.Hayek's theory of the spontaneous order of the market—which is best known for its emphasis on the capacity of markets to utilize dispersed knowledge—delivers the insight that if we want to generate in society any particular order of a certain degree of complexity, we should look for general rules of conduct which, if followed by individuals, would tend to induce that order to form spontaneously. Hayek presents an instrumental justification of a particular type of rules. Rules of just conduct exhibit certain structural characteristics—they are negative, purpose-independent, abstract, universal and permanent—but Hayek's account offers only a very general schema which has to be filled in in detail.As they are defined by Hayek, the general rules of conduct which allow for the formation of spontaneous orders, are not necessarily self-enforcing in the technical game-theoretic sense, contrarily to a widely held view.It is Hayek's emphasis on the theme of the interrelation between the system of rules and its systematic outcome at the level of the order of actions that qualifies him as a Law-and-Economics theorist.Hayek's theory of cultural evolution suggests that the abstract rules which contribute to the formation of a spontaneous order are themselves an unintended product of evolutionary processes. His theory of cultural evolution becomes disputable where it seems to argue that because of our incurable ignorance we ought necessarily to rely largely on unquestioned traditional rules instead of attempting to choose rationally or construct the system of rules that we want to follow.The question of how the different kinds of rules differ in their nature (rules of conduct vs organizational rules) must be distinguished from the question of how they originate (whether they spontaneously evolve or are deliberately designed). The two dimensions are conceptually distinct.The extension of the market analogy to the constitutional level, i.e., to the rules and institutions within which market coordination takes place, is not corroborated by the game-theoretic analysis of invisible-hand processes. This analysis does not warrant the conclusion that invisible-hand processes will always operate to generate efficient results.The game-theoretic analysis involves several simplifications however. The arguments that are based on it cannot be considered conclusive.The most developed parts of the theory of cultural evolution are the theory of nomos, as exemplified by the evolution of the common law, and the theory of the role of the judge.In the theory of the common law and the role of the judge the emphasis is on the coordination of individual activities through a process of systematic mutual adjustment of expectations. The function of the judge is to assure a maximal coincidence of—legitimate—expectations, i.e., to create a situation in which the chance to form correct expectations is as great as possible.The theory suggests that the role of the judge in making law is analogous with the role of an entrepreneur launching a new product: the entrepreneur is consciously trying to make a profit, thus unintentionally contributing to the overall allocation of resources. The judges, by upholding those rules which make it more likely that expectations will match and not conflict, are consciously trying to give greater internal coherence to the law. Each is unintentionally playing a part in the formation of a spontaneous order—in one case, the body of the common law, i.e., a system of rules of conduct conducive to the efficient operation of the order of actions which rests on it, in the other, the overall allocation of resources.The analogy is not flawless: while it seems plausible to assume that the entrepreneur, when unintentionally assisting in the overall allocation of resources, is trying to make a profit, i.e., is guided by the profit motive, it is not clear why we should assume that judges are guided by the search for greater coherence. With respect to the role of the entrepreneur, private vices may be supposed to coincide with public benefits, since only those entrepreneurs who de facto achieve positive profits in one way or another and can therefore be assumed to serve the interests of consumers better, will thrive and prosper, whereas entrepreneurs who do not succeed in doing so are eliminated sooner or later. But insofar as judges are public officials, the analogy seems to be particularly weak. Judges hardly constitute a homogeneous group and their interests and motivation may be highly varied.Insofar as judges adjudicate particular cases by means of custom and precedent, stare decisis can be said to account for the transmission or replication mechanism in the evolution of the law.It is explicitly recognized that grown law requires correction by legislation. It seems that legislation can be required both to generate novelty—i.e., as a mutation mechanism—and to eliminate errors in past developments—i.e., as a selection mechanism.Evolutionary analysis as such does not provide us with a satisfactory normative framework for comparative institutional analysis. Hayek's limits of reason argument implies that, at least to some extent, we will have to rely on the explorative potential of open-ended, competitive, evolutionary processes and on the kind of experience that accumulates in trial and error learning processes. But it should not imply that we adopt an attitude of uncritical acquiescence in evolutionary drift.One direction in which such a framework for comparative institutional analysis has been explored recently, is provided by the research programme of Constitutional Political Economy. The basic framework is derived from the contractarian analysis of multi-level individual choice.An alternative direction in which the evolutionary perspective may be provided with a normative benchmark consists of complementing it with a realist ethical theory. Popper has found in evolutionary theory a forceful argument for objectivism and realism. An elaboration of this theme would go beyond the scope of the domain of Law-and-Economics.