近代西方的契约理论及其法治意义

近代契约理论是现代法律制度体系的合法性基础。自然法思想、市场经济、民主政治和权利文化为它提供了制度化的基础。近代西方的契约理论蕴含着深刻而又丰富的法治意义。从私契约理论演化而来的社会契约理论系统确证了法治观念的必然性,决定了公私法法域划分的合理性,以至于宪法成为社会契约的法律表现形式。进入信息知识经济社会后,人们在不懈追求意思自治的同时,注意到了契约的形式合理性和实质合理性之间在一定程度上的紧张关系,在其基础上发展了契约理论,并逐步认识到意思自治与国家适度干预相结合是消除契约当事人实际地位不对等的缺陷,实现契约自由的保证。

The Western Contract Theory in Modern Times and Its Significance of Ruling by Law

The contract theory in modern times is the legitimacy basis of modern legal systems. It takes the natural law ideology, market economy, democratic politics and the culture of rights as its system basis and contains a profound and rich connotation of ruling by law. The social contract theoretic system developed from the private contract theory determines the certainty of the concept of ruling by law and decides the rationalization of the distinction between public law and private law so that the constitution turns out to be the legal reflection of the social contract. In such an information and knowledge-based economic society, while pursuing the self-governing by individual willingness , people become aware of the somewhat tense relationship between the rationalization of the form of a contract and the nature of a contract. They improve the contract theory on this basis and realize that the combination between self-governing by individual willingness and the proper intervention of the state is the guarantee of eliminating the disparity between the real status of the contracting parties concerned and realizing contract freedom.