Chapter 14 Chapter 10 Order Requirements

In this work, I analyze legal institutions in terms of two fundamental concepts that are integral to understanding their formal structure and their substantive purposes.These two basic concepts are order and justice.In order to make the analysis clear, I intend to discuss the relationship between law and the above two concepts in different chapters.However, the discussion that follows will also show that there are still many important connections and overlaps between the order elements of law and the role of legal arrangements to promote justice in interpersonal relations. In the following chapters, I will first draw a distinction between order and security.The term order will be used to describe the formal structure of legal institutions, especially the legal tendency to apply general rules, standards, and principles in fulfilling its task of regulating human affairs.Security, on the other hand, is seen as a substantive value, something that justice in social relations must seek to promote.Therefore, in this perspective, security is closely related to the content of legal norms, which focus on how to protect people from acts of aggression, robbery and plunder, and from a more moderate perspective, they may also focus on How to mitigate some of the hardships, vicissitudes, and accidents that accompany human life.

The concept of order, as used in this book, means that there is some degree of coherence, continuity, and certainty in both natural and social processes.The concept of disorder, on the other hand, suggests the presence of breaks (or discontinuities) and irregularities, that is, lack of intellectually accessible patterns—expressed as transitions from one state of affairs to another. Unpredictable mutation situations.History shows that wherever humans have established political or social organizational units, they have sought to prevent uncontrollable chaos and to establish some viable form of order.This tendency to establish an orderly pattern of social life is by no means an arbitrary or "against nature" endeavor of man.I shall show in the next section that this tendency of man is deeply rooted in the whole structure of nature, of which human life is just an integral part.

Observations of the macroscopic world around us show that it is not a chaos of chaotic and unpredictable events, but instead exhibits significant organizational coherence and patterning.At least in those phenomena of external nature that determine the daily lives of life on this planet, order seems to have trumped disorder, routine over derailments, rule over exception.Our planet Earth has always orbited the sun in a largely fixed orbit and in conditions that have allowed life to exist for millions of years.The seasons also always changed reliably, and this enabled people to prepare and store grain during the season when it was abundant, for other seasons in the year when the land did not produce grain.The constituent parts of the physical world, such as water, fire, and chemical substances, have certain permanent and unchanging characteristics; They predict their utility.For example, water becomes solid when cooled to a certain temperature, and becomes water vapor when heated to a certain temperature.Our entire control over the natural world is based on the existence of certain and often mathematically calculable laws of nature.We have always had recourse to the regular and invariable action of these laws of nature in building tunnels, in transporting ships and aeroplanes, in managing floods, and in harnessing electricity for industrial and other purposes.Biological physical processes are also subject to certain laws.For example, the body's normal metabolism occurs according to an orderly system in which it grows only as many new cells as are needed to replace weakened or damaged cells.Most diseases show typical symptoms and follow a definite course of development; if this were not the case, all medical treatment would be a matter of guesswork or pure chance.

Of course, on the other hand, one can also imagine that the normal "lawfulness" of natural events is also affected by exceptions or interruptions of the orderly movement of nature.Though such disruptions themselves occur by the operation of certain laws hitherto undiscovered by man, they appear, to our imperfect knowledge, to be catastrophic events which disturb the normal order of things.Biological species such as the prehistoric lizards have become extinct for no apparent reason.The metabolic mechanisms of living organisms can be disrupted by the disordered and massive growth of cancerous tissue, which defies all normal boundaries.Diseases that do not obey classification may occur in humans, or some known disease form may exhibit an abnormal and unpredictable course of development, which will make long-established treatments and well-tested methods The therapy completely fails.We cannot even say that it is entirely inconceivable that the laws of nature themselves would change over the course of tens of millions of years.

As long as the irregular and utterly unpredictable phenomena of nature do not dominate the periodic regularity of physical phenomena, then human beings are able to arrange and plan their lives according to a predictable course of events.In order to conceive of the possible consequences of the opposite state of affairs, one need only consider the consequences of a general suspension of the law of gravitation (as a result of which everything floats through the air in every direction without limit), or of our planet's fixed The result of an interruption in its trajectory (as a result, it would drift aimlessly through the air, possibly colliding with other celestial bodies or moving far away from the source of life, the sun).The above examples show that the dominant regularity of natural processes is of great benefit to human life.Without this regularity, we would live in a world of madness and chaos.In this world, we will be tossed and turned like puppets by the capricious and totally out of control fate.All human efforts to live a rational, meaningful, and purposeful life are frustrated in a chaotic world.

The above account of the lawfulness of nature seems to be no different from the corrections—sometimes profound revisions—that classical physics received during the twentieth century.Newton and other classical physicists regarded the law of causality in nature as an absolute law; they regarded the physical world as free from any chance and were convinced that everything that happened in this world All are based on strict necessity as their prerequisite.However, the experimental results of quantum physics strongly indicate that there are still uncertain and random phenomena in the microscopic processes of nature.

Some of the great inventors of modern physics, while acknowledging the validity of recent empirical evidence, have refused to infer from it theoretical conclusions that the laws of nature lack the irresistible factor of certainty that classical physicists ascribed to them. constant effect.They attribute apparent instances of lawless or causeless behavior in nature to the limitations of human cognitive faculties and the imperfections of human measuring instruments.Other scientists have concluded that the motion of individual atoms and subatomic particles appears to be largely governed by chance, and that the law is only a statistical phenomenon in examining and predicting the general behavior of large aggregates of particles. appeared.In this view, the new physics gives us probabilistic laws rather than strictly invariable causal laws, which leaves a margin of uncertainty in most physical phenomena involving only a small number of particles.

Some natural scientists have recently proposed an intermediate point of view between the above two opposing theories.In this view, there is no need to reject or limit the notion of causality in nature, as advocated by advocates of a purely statistical theory of natural law.They assumed that causal laws pervaded atomic and subatomic processes, but they also believed that these laws did not have the absolute inevitability that Newtonian physics ascribed to them.They are sometimes intervened by accidents which, as we understand them, arise outside the sphere of action of these laws.In the case of large aggregates of particles, however, this contingent instability tends to cancel each other out to such an extent that the consistency detectable by macroscopic observation often approximates the inevitability of deterministic laws. inevitability.

We can find that none of the above three views denies the view that order prevails in the context of the phenomena of large-scale operations in nature that affect the processes by which we live and operate on this planet. out of order.Adherents of the statistical theory of physical laws readily admit that the motions of planets, electrodynamic phenomena, and the laws of energy and momentum are all extremely useful for accurately predicting future events.However, in some other fields, some small irregularities that deviate from the law have actually been noticed by people.Therefore, even if it is necessary to deny absolute determinism because "nature shows loopholes in the aspects of consistency and inalterability", the nature of physical phenomena mainly governed by laws can still be verified.

As in nature, order plays an extremely important role in human life.Most people follow certain habits in organizing their individual lives and organize their activities and free time in a certain way.In family life, members of the family group also usually follow certain patterns or habitual ways: they eat meals at certain times; household chores are always assigned to certain family members; a certain time is always set aside Come for family activities and more. In the sphere of commercial, industrial and professional activity, the work of arrangement, planning and organization will be greater.The result of the establishment of the division of labor system is the assignment of strictly defined tasks to members of companies, associations, and public institutions engaged in various activities.Policies have been devised to regulate issues concerning the hiring and firing of employees.Members of most organizations observe fixed working hours.Industrial enterprises implement production plans; department stores and food retail stores follow sales procedures.In colleges and universities, rules or general policies are also proclaimed to govern admissions, determine graduation requirements, set conditions for hiring faculty members, and establish systems for governing schools.

In society as a whole, the domain of human affairs regulated by norms is much wider.It covers, among many other issues, the basic structure of the family unit, the conclusion of contractual agreements, and the acquisition, disposition and legal transfer of property.The legal order also prohibits certain clearly anti-social behaviours, such as acts of violence, misappropriation of property and, more seriously, fraud.Many societies also enact basic laws that regulate political decision-making procedures and basic rights of citizens.As society progresses, the population becomes denser, the lifestyles become more diverse, and problems become more complex, the degree of normative social control is also increasing.In a modern civilized country, the number of official and unofficial regulations enacted to ensure the smooth and orderly conduct of major social processes is overwhelming. Even in aggregated groups of men formed by chance, there is a strong inclination to establish a system of legal control in order to keep the group from disintegrating.For example, prisoners of war were found to quickly develop certain rules of conduct to regulate their life in the camp; it should be noted that this was sometimes the case without any initiative or intervention by the camp management happened when.People who are shipwrecked and land on a deserted island almost immediately set about making some kind of temporary system of "laws" and "government."In the frontier settlements of the American West there emerged unorganized village communities of people of very different backgrounds who were cut off from the organized process of government; Voluntary associations are often created. Yet the human quest for order is frequently thwarted by chance, and sometimes by general chaos.This disorder and dissonance at the level of law seems to occur more frequently in human life than in non-organic nature.With the help of computers, humans can be safely sent to the moon and returned to Earth safely.To a large extent, computers work correctly because they are guaranteed by some immutable laws of macroscopic physics.On the other hand, human plans in political, social and economic life are often disturbed by the unpredictability of the sequence of events.In times of war or hardship, there is always the possibility that the existing order will be disrupted; even within the framework of a functioning legal order, violations of norms are extremely frequent.Large-scale or sudden changes in the law can also disrupt expectations as people go about their work or arrange their personal affairs faithfully to the status quo. We cannot even assert that the search for order in human affairs is generally recognized as a worthy end of individual or social endeavor.This is because there has always been a "bohemian" who despises pedantic order and prides himself on the spontaneity and unbridled impulsiveness of his way of life.Great creative artists, in particular, tended more towards a "romantic" way of life than the methodical and often conventional ways of the common citizen.Various other youth movements emerged in many countries in the second half of the 20th century, and these movements also openly declared that a spontaneous and casual way of life-subject to emotional and emotional forces-is more important than a love of order and principled rationality. for superiority.Confrontation with law and order is and has always been an aspect of reality, although the degree and force of this resistance varies from country to country and from historical situation to situation. Despite arguments against the notion that behavior is governed by laws and social life is regulated by norms, a study of history seems to show that orderly lifestyles prevailed over disorderly ones.Tradition, custom, established practice, cultural patterns, social norms, and legal norms, under normal circumstances, all help to keep the trends of collective life within reasonable and stable limits.The ancient Romans summed up this aspect of social reality with the aphorism "where there is society there is law" (ubi societas, ibi ius).We should ask the question where we can find the psychological roots of the human propensity for an orderly and organized life. The inclination for order in human relations can be traced principally to two desires or impulses which seem to be deeply rooted in the human psyche: first, that man has repetitive qualities which in the past were considered satisfactory. Prescient orientation of experience or arrangement.Second, people tend to react reactively to situations in which their relationships are governed by whims, caprice, and arbitrary forces rather than by reasonably stable decisions about the reciprocity of rights and duties of.It is also possible that the orderly element of law has an aesthetic component which finds corresponding expression in the appreciation of the symmetry of art and the rhythm of music; but we do not intend to pursue this hypothesis further here.Finally, the pursuit of order also has an ideological (intellectual) component, which does not originate fundamentally from psychology, but is rooted in the human thinking structure. In one of his later works, Sigmund Freud analyzed the prescient orientation of living organisms to repeat earlier experiences.Using examples from animal life to support his thesis, he argues that the old-fashioned and past-oriented orientation is firmly rooted even in the infant's natural aptitude. Children never tire of making a grown-up repeat a game he has taught them to play, or with them, until he is too exhausted to play any more.If a child has heard a good story, he will insist that it be repeated to him over and over instead of hearing new ones; Any changes the story person might have made. According to Freud, it is normal that the desire to repeat earlier experiences is not as expressed in a person's adult life as it is in childhood.Under the pressure of "external disturbances", people are often forced to abandon habits and accept novelties and changes.Nevertheless, Freud was convinced that the strong desire to "revert to an earlier state of affairs" is always present in the later stages of human development, although this desire varies in intensity; this desire constitutes a kind of inertia inherent in organic life. Phenomenon. Although Freud was particularly inclined to emphasize the tendency of the human psyche to conform to the past and focus on the past (as he sometimes called it "the compulsion to repeat"), there is no doubt that the force of inertia is in the individual It is also extremely powerful in life and social life.Many people are slaves of habit; they are willing to accept the status quo without complaint or question, even though it may well be to their advantage to change it. But this tendency of people to demand continuity does not necessarily mean that they are inclined to that kind of rigidity.People's need for continuity is probably rooted in their (conscious or unconscious) recognition that they cannot adapt themselves to situations in the world without relying on past experience, and may not even be able to stay alive.Between the organized foreseeable world and the disorganized chaotic world, children prefer the former, because if what they have learned and experienced in the past offers no guidance on what will happen in the future, then They then feel insecure and helpless.As we grow older, we become better at distinguishing between desirable and undesirable experiences, and we no longer use the latter.Plus, we've generally become resourceful enough to deal with, and even appreciate, a certain amount of chaos.However, as Maslow pointed out, "Most adults in our society generally prefer the world of safety, order, predictability, legality, and organization; He can rely on, and in the world to which he is inclined, that the unexpected, the uncontrollable, the chaotic, and other such dangerous things will not happen." Needless to say, there is a link between people's need for continuity in their living arrangements and their tendency to demand rules in their relationships.Whenever human behavior is governed by legal norms, the element of repetitive regularity is introduced into social relations.A source of authority from the past is used in a repetitive manner to guide private or official conduct.Following a regularized behavior pattern provides a high degree of order and stability to social life. Freud pointed out that the human nervous system's need to conserve energy and reduce mental stress explains the prescient orientation of people to an orderly lifestyle.Freud's thought provides an answer for us to further answer the question of why compliance with rules plays such a significant role in private decision-making, industry decision-making, and government decision-making.If a certain method of dealing with a problem produces satisfactory results, it is possible to follow that method at a later date without giving any thought to it.If people are constantly reconsidering and overthrowing the way of organizing their lives and the way of solving the same problems, then it is obviously a burden that is too heavy (in the long run, an intolerable burden) ) on the human body.In the words of Morris Cohen, "Anyone has only so much energy to do anything that they have not done before".Of course, when people's customary ways of doing things have over time become obsolete and inappropriate, there is usually an effort to replace them by more proper and more effective ways; experience shows, however, that , Inertia forces often place obstacles in the way of urgently needed reforms. Viewed from another angle, the tendency to subject social interaction to rules has a deeper psychological basis rooted in people's aversion to being treated domineeringly by others.For example, the employment relationship is largely governed by the whims, whims, or capricious moods of the employer, unless the employee's obligations, rates of compensation, and hours of work are fixed to some reasonable extent.Since rule-following confers a degree of predictability on human affairs, people are usually able to know what is expected of them and what actions they should avoid in order to prevent adverse consequences for them. We should emphasize, however, that the regulation of interpersonal and social relations by rules does not, by itself, automatically provide some protection against oppressive forms of domination.Even if the existence of rules helps people eliminate extreme forms of willfulness and prejudice in dealing with interpersonal relationships, there is still the possibility that the content and operation of the rules are still harsh, irrational, and irrational. humane.Although the order element of law acts as a hindrance to arbitrary forms of power domination, it is not by itself sufficient to guarantee the justice of social order. Two types of social models are considered to have no institutional means to create and maintain orderly and ruled processes of governance.These two types are Anarchy and Despotism, in their pure forms, of course.Although we hardly ever hear of a society operating on a basis of pure anarchy (at least for a long time), or of a complete despotism, the Thinking about the aforementioned extreme and "marginal" forms of political or social existence will help us understand the nature and role of law as a social control force. Anarchy means a state of life in which no one is subject to the power and orders of another person or group.The philosophical basis of anarchism is the assumption that "man's first duty is to be autonomous, that is, to refuse to be governed." Where anarchy predominates, the government cannot impose coercive regulations on members of that society ; people's affairs should only be regulated by voluntary agreement, and in no case can be regulated by force.In Proudhon's words, "The domination of man over man, whatever the name may be, is oppression." Among the theories of anarchists, there is an anarchist theory of individualism on one side and an anarchy theory on social groups on the other.The German theorist Max Stirner asserted that every human being has an unlimited right to act according to his impulses and to do as he pleases, arguing for the perfectly self-interested individual: the individual is conscious of I am fighting against the collective, and I am not even afraid to use criminal methods such as violence as a means to achieve my goals.Most anarchist thinkers, however, base their views of the optimal society on a picture of human socialization.Theorists such as Proudhon, Bakunin, and Kropotkin are convinced that human beings are inherently good and caring for society, but that the state and its institutions corrupt them.They believed that men possessed a deep gregarious instinct, and that after violently destroying organized government they could live together in a perfect system of liberty, peace, and harmony.In place of the coercive state, loose and spontaneous associational groups can be created; each person can join a social group of his choice, and he can leave it whenever he wants.Leo Tolstoy also believed in the possibility of a non-coercive society in which all members of society live together in harmony through mutual friendship.Instead of ruthless competition, cooperation and mutual aid will be the supreme laws of such a society. It is quite impossible, however, to suppose that an undisturbed and harmonious union of men can be established by the complete abolition of the state or other organized forms of government.It is not without regret that order in human affairs does not come into effect automatically.Even if we assume that the vast majority of people are socially concerned and good in nature, there must still be a minority of uncooperative and aggressive people in society against whom force has to be resorted to as a last resort.A few destabilizing or criminal factors can easily disrupt society.Recent statistics show that high levels of economic prosperity—which anarchists envision as the basis of their ideal society—do not, by themselves, automatically solve the problem of crime.No matter what the economic situation is, "people must obey their emotions", and even reasonable people with normal intelligence, under the confusion of uncontrollable impulses, may also do certain behaviors that society cannot tolerate.Outside the sphere of law enforcement, the view that "all powers are equally illegitimate" does not enable a society to cope adequately with the many other tasks which it is incumbent on its members or their institutions to perform responsibility.For example, in the management of government departments and manufacturing enterprises, the exercise of power and the issuance of orders are sometimes necessary to ensure effective results. Nor can we assume that a model of society based on anarchist forms of freedom will lead to equality of opportunity and conditions in which people live and work.There is ample historical evidence that the absence or weakness of organized government can easily lead to bureaucratic rule or economic dependency.For example, during certain periods of late antiquity and the beginning of the Middle Ages, the prevalence of a state of near anarchy led to the formation of a feudal form of social system in which the freedom enjoyed by the lower classes was extremely extreme. limited.A staunch anarchist might reply that such phenomena were to be attributed to peculiar social contingencies of the distant past, and that their recurrence could be prevented in advance by deliberate policies aimed at improving human nature.But at this point in human history, it is extremely difficult to justify such hopes. The exact opposite of anarchy in social life is a political system in which one man exercises unlimited despotism over others.If that person's power is exercised in a completely despotic and arbitrary manner, then we are dealing with a pure despotism phenomenon. The pure despots give orders and prohibitions according to their free and unlimited will, and their accidental whims or passions.One day he would sentence a man to death for stealing a horse; the next day he would acquit another horse thief for telling him a funny story when he was brought before him. story.A favored courtier could be thrown suddenly into prison for defeating a pasha in a chess game.An influential writer would meet unforeseen misfortune and be burned at the stake simply because he had written a few words that annoyed the ruler.The actions of such pure despots are unpredictable because they do not follow rational patterns and are not regulated by stated rules or policies. Most forms of despotism recorded in history do not share some of the extreme features of pure despotism mentioned above, because some deep-rooted social or class habits are generally respected by despots, and private property rights and family relations are usually also respected. will not be disturbed.Again, a government with unlimited powers can also give some direction to its actions by declaring a political ideology that articulates at least the basic purpose of government policy.However, the degree of predictability of official actions afforded by this ideological framework may be extremely limited.A law enacted by the revolutionary Eisner government (which came to power in Bavaria for a short period after the First World War) provides a model in this regard.The law reads as follows: "Any violation of the principles of the revolution will be punished. The degree of punishment depends on the discretion of the judge".While the government's political ideology is generally known to call for a workers' republic and a socialist economy, the variability and instability of the specific "principles" designed to achieve this general goal certainly Many credulous people fall into this net of written law that is extremely vague above the level.The penal code passed by Nazi Germany in 1935 also created a level of uncertainty which should be strictly prohibited in order to carry out the political and racial ideology of Hitler's regime.This statute empowered the judiciary to punish people with provisions similar to those in force at the time, so long as the "healthy sentiments of the nation" demanded such punishment.This catch-all term gives judicial authorities latitude to prosecute dissidents and members of groups they do not welcome, guided by unwritten standards. The above two examples are intended to show that discretionary powers, which are in fact indistinguishable from the granting of arbitrary powers, can also be conferred on a government agency under the guise of law.From a sociological point of view, introducing more and more vague, extremely flexible, overbroad and inaccurate regulations into the legal system (especially the political criminal law field) is tantamount to a legal system. denial and affirmation of some form of despotism.This situation is bound to increase people's sense of danger and insecurity. In an autocratic power structure, citizens cannot expect their rulers to act in accordance with general orders, which would otherwise be decisive for their conduct; General orders issued may arouse the ruler's resentment and desire for revenge today or tomorrow.Each individual must be aware of the momentary whims of the ruler, and try to adapt his conduct to them.In such a regime structure, the usual state of mind of the people must be one of anxiety. However, there is a way to prevent this tyranny, and that is the legal way. Law is by its very nature a limitation on the exercise of arbitrary power, and is therefore hostile to both anarchy and despotism.In order to prevent anarchy in which numerous wills conflict with each other, the law limits the power of private persons.In order to prevent the tyranny of an absolute government, the law controls the power of the ruling authority.Law attempts to maintain a compromise or balance between the two extreme forms of social life we ​​described in the previous section by introducing order and regularity into private intercourse and the functioning of government agencies.A well-established and fully developed legal system is intermediate between the two diametrically opposed forms of anarchy and despotism.Through an effective private law system, it can define the sphere of action of private individuals or private groups to prevent or oppose mutual aggression, avoid or prevent serious interference with the liberty or ownership of others, and social conflict.Through an effective public law system, it can strive to limit and restrain the power of government officials, to prevent or remedy the undue encroachment of such power on the guaranteed private rights and interests, and to prevent arbitrary tyranny.Thus the purest and most complete form of law is realized in a social system in which the possibility of private and governmental exercise of power in an arbitrary or tyrannical manner has been successfully excluded. The law's attempt to introduce orderly relations into the intercourse of private individuals and private groups, and into the workings of government agencies, cannot be achieved without regulation.规范（norm）这一术语源出于拉丁文norma一词，它意指规则、标准或尺度。规范的特征——从这个概念同法律过程相关的意义上讲——乃在于它含有一种允许、命令、禁止或调整人的行为与行动的概括性声明或指令。在这一术语的惯常用法中，并不含有对个别的情形做完全个殊性的特定处理的意思。 有论者曾经断言，“如果一个小社会的领导人不根据规则却按照其主观的正义感来裁判每个案件，那么也几乎不会有人说这个社会是没有法律的”。很显然，这种说法如果没有限制条件是不能接受的。如果该领导人的“主观正义感”是以在基本相似的案件中做出一致判决的方式表现出来的，那么在他的判决活动之中实际上已经具有了规范性内容，而且他所遵循的裁判标准也很快会被该社会的成员所知晓和遵循。但是，如果该领导人对于司法的主观态度导致了非理性的、反复无常的和完全不可预见的裁决，那么该社会就有可能把这一状况视为是与法律秩序相对立的一种状况。法律同专制，恰如我们所见，乃是根本的对立物。正如弗里德里克·波洛克（Frederick Pollock）爵士所正确指出的，“只要行使的是任意的权力，那么无论它同其所依据的东西有多密切的关系，也不管它是否符合任何人为定义的语词，它都是与一般法律观念相违背的。一个只考虑自己瞬时兴致的专制暴君，根本就不能被认为是在司法，即使他自称是在裁判其国民间的纠纷”。 哲学家与法学家通常都强调法律同普遍性之间的紧密联系。亚里士多德（Aristotle）就指出，“法律始终是一种一般性的陈述。”西塞罗（Cicero）也强调说，法律是一种衡量正义与不正义的标准。一些著名的古罗马法学家也都发表了类似的观点，他们的论述曾为《查士丁尼法典》所引用。帕比尼安（Papinian）将法律描述为“一种一般性的律令”。乌尔庇安（Ulpian）则指出，法律规定不是为个人制定的，而是具有着普遍的适用性。由于保罗（Pollus）认识到法律规则通常要适用于在数量上并不确定的种种情形，所以他指出，“立法者并不关注那些只会发生一两次的情形。”晚些时候，圣·托马斯·阿奎那（St.Thomas Aquinas）把法律视为一种“有关行为的标准与规则”；而让·雅克·卢梭（Jean Jacques Rousseau）则认为，“法律的对象始终是普遍的。” 一些英美国家的论者也采取同样的立场。托马斯·霍布斯（Thomas Hobbes）认为，所谓“国家法”，就是那些“由英联邦强施于其国民之身的规则”。约翰·奥斯丁（John Austin）则认为，只有那种“对某类作为或不作为具有普遍约束力”的命令，才是法律。他指出，如果议会禁止谷物出口，而不论这是一个特定时期的还是无限期的禁令，那么这就会创立一种法律。但是议会为解决即将出现的谷物稀缺现象而发布的一项有关停止出口业已装船和运至港口的谷物的命令，则不会成为法律，尽管这种命令是由拥有最高权力的立法机关发布的。弗里德里克·波洛克爵士说，“在某个特定国家中现行有效的规则之总和，不论它采取什么特殊的形式，用通常的话来讲，就是我们所理解的法律。”法律概念预设了规则之存在的观点，也得到了约翰·奇普曼·格雷（John Chipman Gray）、埃德温·W·帕特森（Edwin W.Patterson）、H·L·A·哈特（HLAHart）、郎·L·富勒（Lon L.Fuller）和查尔斯·弗里德（Charles Fried）等学者的强调。 一个法律制度在指导私人行为与官方行为时所使用的规范，其形式一定是多种多样的。它们可能——恰如上述所引证的文字所表明的——采取典型的规则形式，这种形式可以被视为是规范性控制的方式，其特征是它具有很高程度的精确性、具体性和明确性。它们也可以采取原则的形式，亦即旨在确保公正司法的一般性准则，这些原则与规则相比，所涉范围更广泛、阐述也更模糊；另外，这些原则往往还会遇到各种各样的例外。法律过程有时还受政策的指导，这些政策可以被定义为旨在实现某种明确的社会、经济或意识形态等方面的目标的审判标准。习惯与社会信念在法律生活中也起着某种作用。所有上述的行为与司法审判的标准，与法律规则一样，也都具有普遍的特性。它们都是由那些旨在型构或裁定大量人类行为的模式或尺度构成的，而不是由那里处理单一的个别情形的瞬变且具体的指令构成的。 从语义与功能上考虑，坚持主张普遍性要素是法律概念的重要组成部分，是极为可欲的。首先，这一思路使法律这一术语的用法获得了语言上的一致性。在自然科学中，法则（law）这个词是专门用来描述自然界运行中始终如一的因果模式或至少可统计的规则性，而且不适用于那些按照重复性经验都不可理解的异常事件。使该术语的使用在全部或大多数场合下保持一种语言符号的基本含义，具有许多优点。托尔斯托伊（Tolstoy）指出，“人进行思想交流的惟一工具就是语词；为使这种交流成为可能，就必须按照这种方法——使所有人都采用一致的和确切的概念——去使用语词。但是，如果有可能任意使用语词，并有可能通过它们去理解我们也许会想到的任何东西，那么完全不用说话而用符号来表明万事万物，那当然再好不过了。”尽管要完全实现语义一致性这个目标是极为困难的，但是我们似乎并没有令人信服的理由做这样的宣称，即法则这一术语在社会科学中的运用，其含义必须截然不同于它在自然科学中的含义。我们应当完全赞同卡多佐（Cardozo）法官的观点，“如同在大自然的进程中一样，我们赋予了连续一致性以法律这个称谓。” 第二，当我们赋予人定法以一种与自然法则含义相联系的意义的时候，我们不仅使一个语言上的术语在使用的过程中保持了一致性，而且还在人的头脑中印刻上了社会法则所具有的一个非常重要的功能性特征。通过把一种一致的裁判标准适用于大量相同或极为相似的情形，我们实际上是将某种程度的一致性、连贯性和客观性引入了法律过程之中，而这将增进一国内部的和平，并且为公平和公正的司法奠定了基础。正如莫里斯·科恩所恰当指出的，“法律绝不能放弃它在一致性方面的努力。我们必须牢记，法律在每一起诉讼案件中总是要使至少一方当事人的期望破灭的。要维护其威信，就不能因小失大，而且还要求在公正性方面做出持久且明显的努力，甚至要给败诉方都留下很深刻的印象。”如果没有规则、标准与原则的约束作用，那么迫使法官和其他官员根据主观意志处理案件的压力，就会变得无法容忍的强大。再者，由于法律具有普遍性，“人们就能够预见到尚未被起诉的情形的法律后果，进而能够在因此而变得较为确定的未来时间中安排他们的行为”。如果法律只是或主要是由个殊性的特定的解决方法构成的，那么它就不能发挥它使社会生活具有某种结构的作用，也不能践履其保障人类享有一定程度的安全、自由和平等的功能。因此，我们不难发现，历史法学、社会学法学、分析法学和比较法学所处理的经验上的资料，很大一部分是立法规则、司法规则、惯例规则、公共政策原则、正当社会行为的标准和审判技术。 另一方面，一个法律制度的重要意义并不只局限于认可和颁布规则、原则以及其他构成法律规定结构的规范，这也是显而易见的。在适用、实施和执行法律规范时，实际上也是法律具体化和个殊化的过程。一条一般性规则规定，一个人只要违约就将承担赔偿责任；这条一般性规则就会成为下面这个具体司法裁决的渊源，该裁决指令甲方因其未能履行契约允诺而向乙方支付1000美元。一个授权为穷人提供法律服务的法规，会因在各个社区中开办法律援助机构而得到实施。一个赋予65岁以上的老人以社会保险救济金的法规，能通过给予合格申请者以月救济金的具体行政裁定而得到执行。一个在一般意义上规定抢劫罪构成要件的刑事法规，可以通过逮捕一个犯有抢劫罪嫌疑的人并在诉讼中通过对该人提起公诉而在一个个别案件中得到实施。 约翰·奥斯丁认为，法律这一术语应当只适用于主权权力者所发布的一般宣告，而不应当适用于具体的法院判决与行政决定。而另一方面，却有人论辩说，法律是由法院与行政机构所宣布的个别判决之总和构成的。从我们业已讨论过的观点来看，奥斯丁的观点似乎更可取。当我们研究一个国家现行有效的“法律”或“法律规范”时，我们所想到的就是旨在控制私人行为和官方行为的规则、法规、条例和其他一般律令。法律的适用、实施与执行，应当同构成法律主体的规范性结构区别开来。 当然，如果不考虑规范性结构发生于法院、执法机关和行政机构日常工作之中的具体化过程，那么我们就不可能完全认识和详尽分析一个现行有效和实际运作的法律制度。一个抽象的法律规定在型塑人们的行为或为法律裁判提供一种渊源方面是否有效，只有通过考察行动中的法律（law in action）才能够确定。某种执法实践是否恰当和合法，法院应当确认它还是宣布它无效，这类问题也只有通过根据那些为指导官方行为而制定的规范性标准去衡量该实践才能够确定。因此，研究法律制度的学者的关注点，必须放在法律的“规则”部分上和这些规则在法院和其他与执法有关的机构中的实施情况上。 因此，我们可以说，一个法律制度，从其总体来看，是一个由一般性规范同适用与执行规范的个殊性行为构成的综合体。它既有规范的一面，又有事实的一面。法律的规范性结构，可以说是一种“应然”体的集合，这当然是从这些规范要求人们服从但在现实生活中并不总是得到遵守或执行的意义上而言的。例如，一部禁止非法侵占财产的刑法规定，一个人如果侵占属于另一个人的动产，就应当受到惩罚；然而这部刑法并未宣称，他在事实上将受到惩罚，因为我们从经验获知，他可能会躲避侦查或者会因缺乏足够证据而被宣判无罪。而另一方面，警察拘押和逮捕一个罪犯、发布一项禁止违法的劳务活动的执行令、司法行政官扣押债务人的财产等等，则都是经验性现实世界中的事实性现象。 法律秩序中的规范与事实这两个方面，互为条件且互相作用。这两者要素缺一不可，否则就不会有什么真正意义上的法律制度。如果包含在法律规则部分中的“应然”内容仍停留在纸上，而并不对人的行为产生影响，那么法律只是一种神话，而非现实。另一方面，如果私人与政府官员的所作所为不受符合社会需要的行为规则、原则或准则的指导，那么社会中的统治力量就是专制而不是法律。因此，规范性制度的存在以及对该规范性制度的严格遵守，乃是在社会中推行法治所必须依凭的一个不可或缺的前提条件。 通过上述论述，我们或许可以得出结论说，法律制度乃是社会理想与社会现实这二者的协调者。根据一般社会经验，我们可以说它处于规范与现实之间难以明确界定的居间区。从它主张可欲的行为——这一主张会因人们无视它的标准和规则而无法实现——的角度来看，它仍然只是一种规范性要求。从它在某个国家的政治与社会生活中得到遵守与执行的角度来看，它就成了规范人们实际行为——无论是私人行为还是官方行为——的行之有效的力量。 为了使法律具有逻辑自恰性、可预见性和稳定性，高度发展的各个法律制度都力图创建一个有关法律概念、法律技术与法律规范的自主体。至少在法制发展过程中的某些重要时代，便盛行着把法律建成一门自给自足的科学的趋向，完全以它自己的基本原理为基础，且不受政治学、伦理学和经济学等学科的外部影响。法律在其发展的这个时期，主要是试图从其内部形成它自身的发展道路，并试图尽可能地从其自身的概念和观念的逻辑中推论出解答法律问题的答案。通过逐步建立一个专门机构和一个内部组织，通过创设一个特别的法律专家等级——这些专家以专门的训练与专门的知识为其特征，并通过精心设计一种同质性的法律技术与方法，法律试图确保和维护其自身的自治性。这并不意味着法律是静止的或不能发展和改善的，而是说人们试图使它以一种特立独行的方式存在和发展。因此，只是在一项法律争诉的事实被安排得与这个专门制度的要求相符合以后，人们才能对这些事实做司法上的认识和分析。显而易见，构成此一过程之基础的观点是：法律不得受政治或其他外部压力的影响，避免依赖于波动不定的经济情势，摆脱变幻无常的社会趋向的冲击，并且采取保障措施以杜绝不适当的偏见和因人而异的司法所可能产生的危险。使法律与外界相脱离的这种趋势，部分原因还在于司法界与法学界那些人的惰性，他们满足于用既有的工具进行工作，并且拒绝关注法律以外的世界。 把法律当作一个位于封闭圈地之中的不可企及的女神加以崇拜的努力，可以见之于古罗马与英国法制史的某些特定时期。如弗里茨·舒尔茨（Fritz Schulz）所指出的，“罗马私法，一如古典论者所描述的，已达到了很高的明确程度，而且在逻辑上也达到了很高的自恰性。但是，真正在其中起作用的法学观点的数量相对较小，因为所有与特别的或非罗马的变化相关的观点都被抛在了一边。这些法律规则具有着必然真理的性，一如它们完全忽视了公法所设置的限制条件或法律以外的责任那般。”罗马在进行法规汇编过程期间也逐渐形成了一个具有高度技术性质的辩护制度，其结果是，这些已成陈规的、完全拘泥于形式的辩护规则，往往不能符合生活与常识的要求。 同样，在英国法中，人们也可以在其历史进程中发现各种试图建立一个“纯粹”法律制度——其主要特征是内在的首尾一致性——的努力。正如F·W·梅特兰（F·W·Maitland）所指出的，“我国那些早期的法学家们老是喜欢说，'法律将容忍损害而不能容忍不便'。他们的意思是说法律将容忍一种实际困难，而不能容忍不一致性或逻辑上的谬误”。在普通法诉讼制度与辩护制度达到其发展的顶峰时期，为了完全实现与业经确立的原则趋于一致的要求和墨守法规这一正统观念的刚性要求，人们往往无视正义与功利的需要。英美两国关于收回不动产诉讼的历史就是长期使用拟制方法的一个范例，而这些方法则与诉讼之功利目的完全相悖，它们只是为了维持教条的做法的连续性，却根本不顾救济性正义原则日益变化的需要。 赋予法律以自主学科地位的努力是值得称道的，只要这种做法没有超出某些许可的范围。法律既不应当被等同于政治学，也不应当被淹没于即时的权宜之策的旋涡之中。法律的许多制度都旨在保护权利和预期的安全，使它们免受各种强力的侵扰，这些强力常常以各种公共的或私人的利益为由而试图削弱法律结构的完整性。为了实现这一目的，法律就必须能够抑制住政治压力或经济压力的冲击，因为所有这些压力都试图把强权变成公理。然而，这并不意味着法律框架能始终不受那些型塑并改变社会生活结构的社会力量作用的影响。更为具体地讲，法律无法避免该共同体的道德意识与社会意识之变化的影响。那种在根本不考虑一项法律结果所具有的伦理后果和实际后果的情形下就试图证明该项法律结果的必然性的法律教条主义，往往是自拆台脚和靠不住的。 尽管为了在社会中确保法治的实施，一个由概念和规则构成的制度是必要的，但是我们必须永远牢记，创制这些规则和概念的目的乃是为了应对和满足生活的需要，而且我们还必须谨慎行事，以免毫无必要地、毫无意义地强迫生活受一个过于刻板的法律制度的拘束。我们不能将法律变成一个数学制度或一种故弄玄虚的逻辑体系。尽管法律的规范性标准和一般性概括会防止法律变得过于不确定或不稳定，但是它的安排却要受制于人们根据社会生活的需要和公平与正义的要求所做出的定期性评价。因此，法律的自治性只能是一种部分的自主性。试图把法律同外部的社会力量——这些社会力量不断冲击着法律力图保护其内部结构所依凭的防护层——完全分隔开来的企图，必然而且注定是要失败的。