Chapter 18 Chapter 14 Pros and Cons of the Rule of Law

Man's nature is so constituted that his creative faculties and energies are not exhausted in the struggle for his own existence and reproduction.In him, there is still an excess of energy, otherwise it would be impossible to have the great collective cause we call civilization.If man's energies were spent entirely in trying to find food and shelter, in trying to protect himself from the threats of nature, and in reproducing his own kind, he would have no energy left for the higher cultural activities which Far beyond the range of activities that meet the minimum immediate necessities of life.This residual capacity for cultural activity is the criterion by which man is distinguished from lower beings, and this criterion is perhaps more telling than anything else.

Indeed, as Franz Alexander pointed out, the strong desire of man to contribute to the tasks of civilization to the fullest of his potentialities is subject to the opposition of the "principle of economy" This "economic principle" will encourage people to relax their pursuits and save their energy when the necessary conditions of their lives are guaranteed.Positivity is often counterbalanced by laziness, active creativity is lost by will-degrading laziness, and productivity is lost by laziness.Since the tendencies to develop both striving and inertia are inherent in individual and social life, in order to realize man's constructive and creative faculties it must be stimulated by all possible reasonable means to develop and develop. The desire to struggle.It is increasingly recognized by modern psychologists that man can achieve true happiness only when his capacities as a whole organism (including the mental and emotional parts) are realized as fully as possible.Without a well-integrated social system that satisfies man's strong physical and spiritual aspirations, this state of affairs, with its attendant consequences, creates severe psychological frustration among the masses, which in turn can lead to Disintegration of the social order.Human desires are not satisfied by food and shelter and reproduction.Man also desires to participate in some worthwhile cause to which he can devote his special talents, whatever their nature or effect.Individuals, therefore, must be given the opportunity to realize their higher purpose in life, that is, to develop their talents in the service of humanity.

The legal system plays an important and indispensable role in the struggle for a rich and satisfying civilization.Law, of course, does not directly carry out or enhance the construction of the edifice of civilization; nor does it command men to be inventors or discoverers, to devise new methods of city construction, or to compose good musical compositions.However, by establishing the conditions for human social organization to perform its higher tasks, legal institutions can contribute indirectly to the realization of the "good life" in society. The success of a social system depends to a large extent on its ability to direct the unspent surplus energy of people's economic and sexual pursuits into socially desirable channels.This can only be achieved if the foundation of the whole structure is extremely strong and the whole structure will not collapse even if the top layer is under strong pressure.Only a society that has established effective institutions capable of meeting basic needs in general can direct or encourage activities aimed at enriching and coloring the material and spiritual worlds in which we live. Or encourage those activities that are designed to satisfy people's desire to participate in a great cause.

In order to ensure that people's creativity is used to achieve the most worthy goals of civilization, important foundations must be laid.We must be careful that people's energies are not consumed or wasted in constant conflict with their neighbors, in private struggles between individuals and groups, or in constant vigilance against anti-social elements provocative and predatory behavior.Unless society guarantees a certain degree of safety for individuals and groups, they cannot work on the larger goals that can be achieved by the cooperative efforts of men. The beneficial influence of law on society rests in large part on the fact that it creates and maintains a safe sphere for the individual with respect to certain basic conditions of life.Laws protect the life, bodily integrity, property transactions, family ties, and even livelihood and health of members of their nation.The law eliminates the need for people to establish private institutions to prevent other people from invading their privacy.Law promotes the development and maturity of personality by creating orderly conditions conducive to the development of man's intellectual and spiritual powers.It restrains the personal or social adventures of those whose nature drives them to seek tyrannical power over others. (within bounds determined by intractable aspects of human nature) By stabilizing certain fundamental behaviors, law helps to free people from constant attention to lower-level problems and to help them focus on higher-level tasks of civilization performance because attention to lower-level issues can prevent people from properly performing those higher-level functions.Furthermore, the institutional framework established by law provides means and an appropriate environment for people to perform the multiple tasks related to politics, economy, culture, etc., and these tasks are necessary for a progressive society to meet the demands of its members. effectively done.By fulfilling these functions, law facilitates the constructive channeling of the creative and vital forces latent in society; law thus proves itself to be an indispensable tool in the construction of civilization.

Whether on the international stage or in the internal affairs of countries, the purpose of law is to serve as an institutional means to replace aggressive forces with peaceful forms of interpersonal relations.The past history of human development clearly shows that law has hitherto been more effective in containing struggle within organized groups than in controlling warfare between such groups. As we pointed out in the previous section, a chaotic social situation, in which individuals or groups often engage in conflicts and struggles aimed at injuring or destroying each other, is essential for the development of people's constructive capacities. It is utterly useless, yet the actual exercise of these faculties is a condition of human happiness and cultural development.In this chaotic state of affairs, people will devote all their energies to self-preservation and destructive planning to drive out the aggressor or carry out aggression.However, human psychology is not to maintain a protracted and endless social struggle situation as much as possible.Almost all societies have succeeded in establishing means for their members to live together peacefully, and in creating institutions designed to promote harmony and peace within social units.

Law has always played a key and important role in human endeavors to construct orderly and peaceful "polities".Law is a tool for rationally distributing and restricting power in society.If the law succeeds in this task, it makes a significant contribution to social cohesion and security of life.A healthy legal system assigns rights, powers, and responsibilities according to a plan that takes into account the abilities and needs of individuals as well as the interests of society as a whole.The legal system of a social body also establishes mechanisms for mediating conflicts among the different members of the social unit—and, in many countries, between those members and the government.

Domestic law seeks to protect harmony and cooperation within a country, while international law seeks to achieve harmony and cooperation across borders or around the world.International law establishes norms and procedures for promoting political and economic exchanges between states, for mediating disputes and quelling grievances among states, and for protecting nationals of one's own country temporarily living under the rule of another state.It is through the construction of the above-mentioned norms and procedures that international law tries its best to reduce various incidents that may cause international conflicts.It is generally acknowledged, however, that the normative regime of international law is far from perfect, and that it has some serious deficiencies in the enforcement process, so that it is ineffective in eradicating the causes of international friction and mediating major differences between states. Not much has been achieved yet.

In a world that faces the threat of possible annihilation by nuclear weapons, these shortcomings of the rule of law are bound to cause deep concern.In the words of Ranyard West, "In modern societies, troubles arise less from the individual arbitrary actions of individual members than from the inability of modern societies to control collective aggression." There's more trouble."At this juncture in history, the question worthy of our serious consideration is whether human beings can find a panacea to eliminate international wars in the future.Some eminent scholars of human nature have expressed great doubts that man may find a satisfactory solution.Mr. Sigmund Freud, for example, was convinced—at least in his later years—that the social and creative urges in man are completely counterbalanced by a negative force, which One of the negative forces is the "death instinct" (death instinct), one of its outlets lies in people's aggressive and destructive desires.Freud believed that this powerful desire constituted an obstacle for people to eliminate war.He also hoped, however, that cultural progress and people's "justifiable fear of the consequences of future wars" would in time make wars disappear.German scholar Konrad Lorenz (Konrad Lorenz), who studies human personality, also concluded not long ago that "intraspecific fighting" (intraspecific fighting) is a commonality between animals and humans, but it is not the same as Freud Nor did he completely rule out the possibility that man could devise effective means of controlling his belligerent impulses.

Erich Fromm challenged Freud's assumptions about universal aggressive impulses in humans.In Fromm's view, the destructive force in human nature is neither a primitive desire nor an instinctive desire, it is only something that manifests when people are frustrated. "The degree of destruction is directly proportional to the degree to which a person's abilities are blocked. . . . If life's tendencies to develop and to survive are frustrated, the energies thus blocked undergo a process of change and into an energy that destroys life. Therefore, destruction is the result of the unsustainability of life." If this theory is correct, it certainly does not highlight the possibility of future wars.Nations, like individuals, face frustration if they encounter powerful hostility in the world around them.

Bronislaw Malinowski has specialized in the question of whether the war instinct is rooted in man's genetic system.Of course, he answered the question in the negative. "People fight not because they are physically compelled, but because they are culturally induced...War is not the original or natural state of man." He also pointed out that if war arises from an inherent the biological impulses of the human race, it must have occurred in the earliest stages of man's development, for that is when those biological inclinations express themselves most directly and are least restrained.Among the most primitive groups, however, war does not exist.Later, when intertribal warfare began, it was a very accidental affair, and not on a large scale.Such wars break out when an organized group feels that the interests and security of its collective unit are threatened by the actual or potential intervention of other units; hunger also drives human groups to war.Wars in such situations do not break out by themselves, but out of impulses of fear, anger, or despair.Although conquest wars occurred at a later stage in historical development, Malinowski believed that people fought such wars because they were economically and politically profitable, not because of human nature. The so-called "animal of prey" character forces them to act in this way.Some evidence for this theory can be found in the fact that the Roman Empire was at peace for two centuries and that there are many countries in the world today (including Switzerland and the Scandinavian countries) There has been no war for a long time.

The development process of future history will give the final answer to this intricate question.Even if global unification is achieved one day, the possibility of a devastating civil war between some constituent units within a world state cannot be ruled out.It is not entirely clear now that there will be no more stubborn and power-hungry leaders who would unleash the belligerent instincts that make permanent peace a utopian dream.But it should be pointed out that there seems to be no prevailing psychological evidence to show that aggressive violence is a primitive and deep-rooted characteristic of the vast majority of people, and that life-and-death struggle must be inevitable for human beings destiny. If a society allows room for individual activism and self-affirmation (and it may be doubted whether there has ever been a society in history that was able to completely suppress these natural impulses of people for long periods of time), then in contradiction There will definitely be conflicts and collisions between personal interests.Two persons may want to possess the same property and both will take steps to obtain it, and this will involve them in a serious dispute.Several people may enter into a partnership, yet they may disagree on how to manage the business or calculate their personal share.A person may injure another person and be required to pay damages to the injured person, yet he may refuse to accept the obligation or responsibility to compensate the other person for damages. However, the troubles encountered by society are not only the contradictions and conflicts among the interests of individuals (or groups of individuals).There may also be conflicts between the interests of an individual or group of individuals on the one hand and the interests of society as an organized collective unit on the other.The government may wish to open a road or build a building on a privately owned site.It is also possible for the government to set up some restrictions and restrictions that violate the freedom of speech and deeds of individuals for the sake of internal security or national self-defense.In times of war, organized societies may even have to demand that individuals sacrifice their lives for the good of the collective as a whole. One of the main functions of the law is to adjust and reconcile the conflicting interests mentioned above, whether they are the interests of individuals or the interests of society.This must be done, in part, by promulgating general rules that assess the importance of various interests and provide criteria for adjusting such conflicts of interest.In the absence of some general standard of a normative nature, organized society would err by grasping at the standard in deciding, for example, what interests should be regarded as worthy of protection , What should be the scope and limitations of the protection of interests, and what should be the corresponding level and order of various claims and demands.In the absence of such a measure, the adjustment of such interests rests on chance or chance (which can have destructive consequences for social cohesion and harmony), or on some The arbitrary order of a determined group. Interests, as we understand them, can be both individual and social.Interests in personal life, interests in private property, freedom to conclude contracts, and freedom of speech can all be regarded as personal interests.Roscoe Pound identified and explained those social interests that required recognition and protection by the legal system and partially overlapped with the above-mentioned individual interests.According to him, the social interests that should be encouraged and promoted are the following: interests in general security, including arrangements for security and public health against domestic or foreign aggression; security of social institutions, such as government, marriage, family and Religious institutions, etc.; social interests in general morality; protection of natural and human resources; general interest in progress, especially economic and cultural progress; last but not least, social interest in the life of the individual interests which require each individual to be able to live a human life according to the standards of the society in which he lives. The most difficult problem in relation to the above-mentioned personal and social interests is that of how to determine the priority and relative importance of the above-mentioned interests if they cannot be satisfied at the same time.In arranging the priority of this or that of the above-mentioned interests, one will undoubtedly make some value judgments: but on what basis can or should these value judgments be determined?This raises a question of "valuation of interests".Are interests in general security superior to personal interests in property protection and maximum self-development?Is the social interest in protecting natural resources higher than the personal interest in making full use of private property, such as the development of oil properties? Pound himself did not want to be bound by a rigid and rigid evaluation rules.His approach to this problem is a pragmatic and empirical approach.In his view, a judge should understand the nature of his duty and should perform it to the best of his ability on the basis of the best information he can get, and the ultimate purpose, as Pound thinks, is to satisfy as many interests as possible , while minimizing sacrifice and friction. It is indeed impossible for people to make a universally effective and authoritative ranking arrangement for those interests that should be recognized and protected by law according to philosophical methods.However, this does not mean that jurisprudence must regard all interests as necessarily on the same level, nor that any qualitative evaluation is impracticable.For example, the interest in life is a legitimate precondition for the protection of other interests (especially all personal interests), and it should therefore be declared superior to interests in property.Health interests seem to rank higher than pleasure or entertainment interests.In legitimate war situations, the interests of protecting the nation take precedence over the interests of human life and property.Preserving a nation's natural resources for the sake of future generations seems to take precedence over any individual or group's desire to enrich themselves by exploiting those resources, especially when preserving the proper ecological balance determines human survival.The last example above shows that a certain historical or social contingency of an epoch may fix or impose a particular ranking arrangement among social interests, even if an attempt is made to establish a long-term or rigid The value rank sequence of is not helpful. The adjustment of opposing interests and the arrangement of their priority are often achieved by means of legislation.However, because legislation is general and future-oriented, a written statute may not be sufficient to resolve a specific case where a conflict of interest has arisen.If that happens, it may be necessary to establish the relevant facts and decide which of the competing claims should be admitted. The judicial process in this area can take several forms.In general, the law can take a black-and-white approach and respond to competing claims in a lawsuit simply by confirming one party's claim and denying the other's claim.This is the approach favored by the common law tradition.For example, in a personal injury case where both parties were negligent, the common law rejects the compromise approach of reducing the scope of the plaintiff's claim to the extent of his own negligence.The common law, by contrast, denies compensation outright to contributory negligence claimants, to what extent. On the other hand, in the Anglo-American equity law, the above-mentioned rigid attitude has not prevailed.In an equitable case, the court may issue a conditional award requiring the plaintiff to treat the defendant fairly in some way as a condition of receiving the damages he seeks.Equity recognizes that the respective positions of the parties are not a straightforward right or wrong; both parties may be partly right and partly wrong, and a form of compromise or mutual adjustment may therefore be preferable to an "either-or" approach. Either-or solution is preferable. Recently, many countries have increasingly resorted to arbitration procedures, whereby disputes are referred to persons outside the ordinary court system for adjudication.Recourse to arbitral proceedings may be entirely voluntary by free agreement of the parties; however, such recourse to arbitral proceedings may be mandatory if the agreement of the parties is enforced by a legal provision .In both cases, arbitrators are usually given a large degree of discretion to adapt their award to the particular circumstances of the case. Mediation differs from arbitration in that the arbitrator's award is generally binding and enforceable, whereas the mediator simply brings the parties together and helps them reconcile their dispute through voluntary settlement.In Confucian China, there is a particular preference for mediation over litigation, and this preference for mediation has largely persisted to this day.Other Eastern countries, such as Japan and the Soviet Union, also used various forms of mediation procedures.This tendency toward mediation can also be found in some areas of social relations in the Western world today. The question may be raised whether, because of the enormous flexibility and informality of arbitration and mediation procedures, their very existence implies a narrowing of the legal scope.However, we know that since arbitrators and mediators are governed by the basic rules and principles of the law when making decisions, we cannot simply say that the effective scope of the law is narrowed.We can assume that in many cases they are guided by the law, especially when the above-mentioned basic rules also reflect the dominant conception of justice in that particular society.Moreover, within the bounds of strict mandatory provisions of positive law, arbitration and mediation sometimes lead to the adoption of private law norms regulating the future conduct of the parties concerned, which in turn leads to a special kind of legislation. Although the law is an essential and highly beneficial institution of social life, like most other human institutions, it has some disadvantages.These drawbacks can develop into serious operational difficulties if we do not pay enough attention to them or ignore them completely.These deficiencies of the law stem partly from its conservative orientation, partly from the inherent rigidity in its formal structure, and partly from the limitations associated with its control function. Hans Morgenthau once pointed out that "a certain status quo is stabilized and perpetuated by the provisions of the legal system," and since courts are the main instruments of the legal system, "they must serve Acting as an agent of the law." Although this statement underestimates the complex interplay between stability and change in legal life, it contains an important truth.By proposing social policy at a particular time and place through constitutional provisions and written laws, or constraining contemporary judges or theoretically constraining them through precedent, the law highlights a conservative tendency.This tendency is rooted in the nature of law, which is a system of rules that cannot be changed overnight.Once a legal system has established a scheme of rights and duties, the constant modification and destruction of that system should be avoided as much as possible for the sake of liberty, security, and predictability.But law has to pay the price for this policy of stability when established law conflicts with some volatile and important forces of social development. "Society changes, typically, faster than law." In times of social crisis, law often becomes paralyzed because it has to make way for disruptive, sometimes massive, adjustments. The legal "time lag" problem manifests itself at different levels of the legal system.A constitution whose provisions are extremely detailed and difficult to amend may in some cases become a stumbling block to progress and reform.In carrying out its reform mandate, a legislature may be hindered by influential groups with a vested interest in maintaining the status quo.Moreover, the legislative process is often slow and cumbersome, and legislators tend to respond quickly to immediate political interests rather than to issues such as amending outdated codes or modernizing legacy-laden judicial laws.To a large extent, judges seldom carry out reforms, and even reforms are hesitant and gap-filling.Even if they have the power to overturn outdated precedents, they may still follow them in tandem. The problem with legal conservative tendencies is a certain rigidity inherent in the legal normative framework.Since legal rules are expressed in general and abstract terms, they can sometimes only act as constraints in individual cases.The aversion to the idea of ​​law expressed by Plato in some of his writings is rooted in this characteristic of normative arrangements.He argued that general rules cannot do justice to human relationships, which are of infinite variety and complexity.Aristotle also pointed out that although the law is an indispensable social institution, because the law is general and universal, it may therefore bring difficulties to the resolution of each individual case.He thus suggested that, in certain well-defined cases, special equitable measures should be allowed to correct the law.Obviously, Confucian ethics has a more extreme aversion to legal rigidity.And this antipathy is mainly reflected in its strong endorsement of mediated justice.Confucianism does not encourage a litigious attitude, which is characterized by a desire to preserve to the greatest extent the rights conferred by the legal system, as opposed to the spirit of friendly restraint that voluntarily compromises and accommodates opponents. different. A third potential drawback of the law arises from the limits of normative control.The purpose of formulating norms is to oppose and prevent disorder, that is, to oppose and prevent structureless growth, because this kind of development will turn society into a big jungle without even a road.Since there is always the danger that, in applying institutions that serve beneficial ends, they may go beyond their legal limits, it may have occurred under certain historical conditions that regulation became coercion, and control into a suppressed phenomenon.If the checks and balances that the legal system imposes on private and governmental powers become too rigid and rigid, some helpful extensions and attempts are thereby stifled.This is also Nietzsche's concern that the restrictive nature of the legal means of social organization will always produce this result.Although we have many reasons to reject the eccentric dynamism of Nietzsche's philosophy of power, we must at the same time admit that he raises a problem that cannot be ignored. Historically, there have been many instances of excessive use of legal controls.Late Roman law in the period of totalitarian rule interfered with private activities by all means, even the activities of career choice.Handicraftsmen, artisans and other laborers are not only limited to this kind of work, but their occupations are also forced to be hereditary occupations, that is, their children are forced to inherit their father's occupations.In modern times, the code of the Prussian emperor is also an example of this aspect. Its typical feature is that it has made detailed regulations on the lives of citizens, and even stipulated the specific details of the private relationship within the residents' families.In nineteenth-century America, public administration was also sometimes hampered by laws so restrictive that they forbade even the necessary discretion of government in the exercise of power. Some of the legal evils just mentioned can probably be avoided by a judicious and judicious use of the legislative power; this applies especially to the dangers of excessive control.We must realize, however, that under certain social conditions, when anarchy and division threaten social organization, the temptation to resort to repressive methods of legal control becomes extremely strong.In an effort to prevent divisive forces from working in society and to create a higher degree of social cohesion, the pendulum may also swing to the other extreme, to enforce social stagnation and conformity. Other vices of the law are inextricably linked to the fundamental nature of the legal system and can be seen as the flip side of the coin: "where there is light, there are shadows." The conservative, past-focused character of the law ensures that provides a certain degree of continuity, predictability and stability, which makes it possible for people to rely on some established, pre-informed rules of conduct in organizing their activities, and enables people to avoid conflict with others' foresight.In addition, the serious consequences of continuous arbitrary changes seem to be bearable by humans only within the limits determined by their physical and psychological structure.Except during particularly unusual periods of history, it is necessary to arrange and plan for change. The rigidity or rigidity of law stems from the formal structure of the general rules of law.One can avoid this rigidity by fully individualizing the judicial system.However, for reasons we have already discussed in this book, such a case-by-case approach to legal disputes becomes less effective if it abandons reliance on principles and responds merely to intuition in response to the particular facts of each case. at odds with society's best interests.The increasing use of mediation or arbitration awards can reduce some of the disadvantages caused by the rigid nature of the law, such as the "all or nothing" and "win-it-all" typical adversarial litigation. The philosophy of "all things come together".This would result in many voluntary or court-set compromises whereby "the court allocates the rights and obligations between the litigants according to a quantitative standard that is not limited to favoring one party over the other." litigants." It is safe to assume, however, that a developed legal system will still have to recognize that in many cases the law's answer to the litigants' demands must be an unmistakable "yes" or " no".Of course, we must also realize that the mediation process requires both parties to adopt a cooperative attitude that is impossible in any case as a precondition. Only those legal systems that perfectly combine rigidity and flexibility in some concrete and appropriate way are truly great legal systems.In the principles, specific systems and techniques of these legal systems, they link the advantages of stability and continuity with the interests of development and change, thus obtaining the ability to survive for a long time and avoid disasters under adverse circumstances.It is extremely difficult to achieve this creative combination.For it requires a statesman's astuteness, a sense of tradition, and a clear vision of the tendencies and needs of the future in the legislator, and also requires the training of future judges and lawyers; At the same time, the demands of social policy and justice cannot be ignored.These characteristics could only be acquired and developed by legal institutions after centuries of slow and difficult development of legal culture.