Chapter 12 Chapter IV Right to Equal Freedom-2

Now, I want to consider the question of political justice as constitutional justice, and sketch briefly what the right to equal liberty means for this part of the basic structure.There are two aspects of political justice that arise from the fact that a just constitution is incomplete procedural justice.First, such a constitution should be a just procedure consistent with the requirements of equal liberty; second, it should be so designed that, of all practicable arrangements, it is more likely than any other arrangement to produce a just and Effective legislative system.The evaluation of constitutional justice should be carried out from the above two aspects according to the current situation, and the evaluation of this aspect should be made with the viewpoint of the constitutional convention.

I shall call the principle of equal liberty as applied to the political process enshrined in the Constitution the principle of (equal) participation.This principle stipulates that all citizens have an equal right to participate in the constitutional process and determine the outcome of the constitutional process, because the laws they will abide by are enacted during this process.The first idea of ​​the theory of justice as fairness is that if some common principles are necessary and in everyone's interest, then they should be derived from an These principles are presented from the point of view of the original state.The principle of participation transfers this idea from the original position to the constitution as the highest social regulation system for making regulations-the constitution.If the state is to exercise decisive coercive power over a portion of its territory, if the state is to have a permanent effect on the prospects of people's lives in this way, the constitutional process must be able to protect the equal representation of the original state in a practicable way .

Let me presume that it is possible to make constitutional democratic arrangements consistent with the principle of participation.But it is necessary for us to know more precisely, what else does this principle require, under favorable conditions, if it is, so to speak, employed to its fullest extent?Of course, these demands are well known, including the liberty of the ancients, which Constant says is clearly different from the liberty of modern people.Still, it would be nice to see how the principle of participation incorporates these liberties.As for the adjustments that must be made to accommodate existing conditions, and the rationale that guides these compromises, I discuss them in the next section.

We may begin by reviewing some elements of constitutional government.First of all, the power to decide basic social policies belongs to the representative body, which has a certain term of office; it is elected by the voters and is finally responsible to the voters.This representative body has more than purely consultative qualifications.It is a legislature with legislative powers, not just a forum for representatives of various sectors of society.From this rostrum, the executive branch can explain its actions or understand the movement of public opinion.Nor are parties purely interest groups that petition the government for their own benefit; rather, they must advance some conception of the public good in order to secure sufficient support for office.Of course, the constitution may limit the legislature in many respects; constitutional norms govern its actions as a parliamentary organ.But when the time comes, a consolidated majority of the electorate will be able to achieve its purpose, by passing constitutional amendments if necessary.

With some recognized exceptions.All adults of sound mind have the right to participate in political affairs; and the principle of one person, one vote is respected as much as possible.Elections are fair, free and held regularly.Decentralized and unpredictable polls by plebiscite, or otherwise, or at such moments as may be convenient to those in power, are not sufficient for representative government.The Constitution provides strong protection for certain liberties, notably freedom of speech and assembly and the right to political association.The principle of loyal opposition is recognized, and conflict of political beliefs, and conflicts of interests and attitudes which may influence political beliefs, are accepted as normal circumstances of human life.Lack of agreement is part of a just environment because disagreement is bound to exist even among people who share exactly the same political principles.Democracy cannot work well or sustain long without the idea of ​​a loyal opposition, and a feeling of loyalty to the constitutional norms that express and protect that idea.

Concerning the equal liberty enshrined in the Participatory Principle, three points need to be discussed, namely, the meaning of equal liberty, its scope, and measures to enhance its value.Let us first discuss the question of meaning.If strictly followed, the one-person-one-vote principle means that each vote carries roughly equal weight in determining the outcome of an election.Even for geographical constituencies with only one member, the code requires that members of the legislature (one vote each) represent the same number of voters.At the same time, I also assume that this maxim requires that the drawing of legislative constituencies must be guided by some general standard, which is prescribed in detail in advance by the Constitution, and which is carried out as far as possible according to a just procedure.These guarantees are necessary to guard against gerrymandering, since the weight of votes is affected not only by disproportionately sized districts, but also by the sleight of hand.From the point of view of the constitutional convention, these necessary standards and procedures should be adopted, because no one in the constitutional convention has the knowledge that may damage the design of the constituency.Political parties cannot use voting statistics to adjust their constituencies to their advantage; districts are drawn according to criteria that have been agreed upon without such knowledge.Of course, it may be necessary to mention some element of chance, since the criteria for design selection are undoubtedly somewhat arbitrary.There may be no other fair way of dealing with such random companions.

The participation principle also holds that, at least in a formal sense, all citizens have an equal opportunity to hold public office.Everyone is entitled to join political parties, run for elective office and occupy positions of power.Of course, there may also be restrictions on age, residence, etc. here.However, these conditions must have a reasonable relationship to the job, and the restrictions should generally be in the common interest and not create unfair discrimination between individuals or groups, that is, in the normal course of life, for everyone Treat everyone equally. The second problem with the right to equal political liberty is that of its scope.How broad should these liberties be regulated?What is meant here by range is not immediately obvious.Each political liberty can be defined more or less broadly.I will assume, somewhat arbitrary, but traditional, that major changes in the scope of the right to equal political liberty depend on the degree of constitutional majoritarianism.The stipulations of all other liberties seem to me to be more or less fixed.The broadest right to political liberty is thus affirmed by the Constitution, which employs a procedure called the rule of marginal majority (according to which the minority cannot overrule or hinder the majority) to deal with all that cannot be prevented by constitutional mandatory clauses. major political decisions.As long as the constitution limits the scope and power of the majority, whether by providing for a larger majority to deal with certain kinds of bills, or by using a bill of rights to limit the power of the legislature, etc., the right to equal political liberty will not always be that broad.The traditional approach of constitutional regimes—a bicameral legislature, a separation of powers mixed with checks and balances, a bill of rights providing for judicial review—limits the scope of the principle of participation.I presume, however, that those arrangements are consistent with equal political liberty if the same restrictions apply to everyone, and if the terms of coercion adopted may ultimately be the same for all parts of society.This seems possible if the fair value of political liberties is preserved.The main question, therefore, is how broad the right to equal participation should be.I leave this issue to the next section.

Let us now turn to the question of the value of the right to political liberty.The constitution must take steps to enhance the value of the right to equal participation of all members of society.It must guarantee fair opportunities to participate in and influence the political process.The distinction here is similar to what was mentioned earlier (section 12): people with similar talents and motivations should preferably have approximately the same chances of attaining a position of political power, regardless of economic and social class .But how can the fair value of these liberties be guaranteed?

We can take for granted that the prerequisites of a democratic polity are freedom of speech and assembly and freedom of thought and conscience, which are not only required by the first principles of justice but, as Mill says, if they are to be These institutions are also necessary for the rational conduct of political affairs.Although these arrangements do not provide guarantees for rationality, without them it seems certain that rational courses of action will be abandoned in favor of policies pursued by special interest groups.If the public forum is free and open to all, then everyone should be able to use it.All citizens should have the means to understand political issues.They should be able to estimate how certain proposals would affect their welfare, and which policies would help to realize their own conceptions of the public good.Furthermore, they should have a fair opportunity to add alternative proposals to the agenda of political discussions.These liberties protected by the principle of participation lose a large part of their value as long as those with more private means can use their advantage to control the course of public discussion.For in the end these inequalities give those who are better placed a greater influence over the development of legislation.At a certain point they may acquire overwhelming power in determining social questions, at least on those with which they generally agree, that is.So in those things that maintain their favorable environment.

Therefore, remedial measures must be taken to preserve the fair value of all equal political liberties.There are many means available.For example, in a society that allows private ownership of the means of production, property and wealth must be widely distributed, and government funds must be used to provide a formal basis for encouraging free political discussion.In addition, in order for political parties to play a role in the constitutional system, a sufficient amount of tax revenue must be allocated to each political party so that they will not have a relationship with private economic forces (for example, it can be stipulated that according to the number of votes in the last few elections, etc. etc. to subsidize political parties).A political party must stand on its own feet and not bow to the demands of individuals, that is, not made in the public forum and publicly supported by some conception of the public good.If the society does not bear the cost of forming a political party, the political party will have to beg for funds from the social and economic forces with better conditions, and the demands of these economic groups will inevitably be given too much attention.This is especially likely to happen when the less favored members of society, for lack of means, are practically unable to exert any considerable degree of influence, and are obliged to withdraw indifferently and discontentedly.

Historically, one of the major drawbacks of constitutional regimes has been that they have not ensured a fair value for political liberties.The necessary corrective action was never taken, and in fact, never seemed to be seriously considered.Disparities in the distribution of property and wealth, though far beyond the level that can coexist with political equality, are generally tolerated by the legal system.Public resources have never been used to maintain the institutions necessary for the realization of the right to political liberty.Essentially, the flaw is that the democratic political process is at best a controlled competition; it does not even theoretically possess the desirable properties that price theory ascribes to truly competitive markets.Moreover, the effects of injustice in political institutions are far more serious than market imperfections.Political power rapidly accumulates and becomes unequal; the beneficiaries can use the coercive instruments of the state and the laws of the state to secure their advantage.Thus, inequities in economic and social systems can quickly undermine any political equality that might exist under fortunate circumstances.Universal suffrage is not yet a sufficient countervailing force; for as long as parties and elections are financed not from public funds but from private donations, the political pulpit is held at the mercy of the dominant Fundamental measures are seldom properly addressed.These questions, however, fall within the realm of political sociology.I mention these issues here as a way of emphasizing that our discussions are part of a theory of justice and must not be mistaken for a theory of political institutions.We can now conveniently describe an ideal arrangement against which we can lay down a standard for judging actual institutions and indicate how departures from this standard should be justified. Having outlined the principle of participation, we can say that a just constitution provides for a fair form of competition for political office and power.Competing political parties seek civic approval by proposing ideas and policies about the public good designed to advance social ends, based on freedom of thought and assembly guaranteed at fair value to political liberties, according to made by the procedural rules of justice.The principle of participation compels those in power to respond to the vital interests of voters.Delegates are, of course, not only agents of their constituents, since they all have some discretionary powers and it is their responsibility to use their judgment in passing legislation.Nevertheless, in a fundamental sense, in a well-ordered society, they must represent their constituents: they must first seek to pass just and effective legislation, since that is the citizens' first hope of government; To the extent that other interests of their constituents are just, they must promote those interests as well.The principle of justice is one of the main criteria by which a representative's consistent conduct and his reasons for justifying his conduct are judged.Since the constitution is the foundation of the social structure and the highest system of rules governing and controlling other institutions, everyone has the same opportunity to use the political procedures stipulated in the constitution.If the principle of participation is realized, all people have the common status of equal citizens. Finally, to avoid misunderstandings, it should be remembered that the principle of participation applies to institutions.It does not stipulate the ultimate goal of citizens, nor does it stipulate that all people must have the responsibility to actively participate in political affairs.Personal responsibility and obligation is another issue, which I will discuss later (see Chapter 6).It is essential that the Constitution should provide for equal rights to participate in public affairs, and that steps should be taken to preserve the fair value of these liberties.In a well-governed state, only a very small number of people devote most of their time to political activities.Human goodness manifests itself in many other ways as well.But this section, however many there may be, is in all probability drawn more or less equally from all branches of society.Numerous interest groups and centers of political life will have active members to look after their affairs. According to the above description of the Participation Principle, the application of the Participation Principle is obviously limited by three aspects.The constitution may provide for a somewhat broad freedom of participation.It may allow for inequalities in the rights to political liberties; social instruments, large and small, may be devoted to assuring the value of these liberties to the representative citizenry.I shall discuss each of these restrictions in turn, all with the aim of clarifying the implications of the primacy of liberty. The scope of the participatory principle depends on how restrictive the mechanisms of the constitutional regime are to the (barely) majority rule process.These devices can be used to limit the scope of application of the majority rule, that is, those things that the majority has the final say on, and to determine how quickly the goal of the majority can be achieved.A bill of rights might remove certain liberties entirely from the majority rule, and a separation of powers with judicial review might also slow down legislative reform.So the question here is: how can these mechanisms be shown to be consistent with the two principles of justice.What we are asking is not whether these means are actually justified, but what arrangements need to be made for them. First, however, we should point out that the limitations on the scope of the Participatory Principle assume that all are the same.For this reason, these restrictions are easier to justify than unequal rights to political liberty.If all have a greater liberty, at least each loses equally, and so the rest; and if this lesser liberty is not necessary, but is not imposed by human factors, So the freedom system to this extent can only be said to be unreasonable, not unjust.If the principle of one person, one vote is violated, then unequal liberty is another matter, which immediately raises the question of justice. Suppose for a moment that the restrictions on the majority rule apply equally to all citizens, and if these measures of constitutional government are still justified, it is presumably because they protect other liberties.What is the best arrangement can be seen only by looking at the results produced by the whole system of liberties.Here intuitive concepts play a direct role.We have said that the political process is an example of incomplete procedural justice.The constitution that restricts the majority rule by various traditional means is considered to have produced a batch of relatively just legislation.Since, as a matter of practical necessity, some reliance must be placed on this majority principle, the problem is to discover which restrictions in particular cases will most promote the aims of liberty.Of course, these questions do not belong to the scope of discussion of justice theory.We do not need to consider which constitutional mechanism can effectively achieve its purpose, or to what extent its effective function depends on certain basic social conditions.A related problem is that, in order to justify these restrictions, one has to argue that, from the point of view of citizens represented in the Constitutional Convention, less widespread freedom to participate is far less other liberties within the scope of theAn unlimited majority rule is often considered hostile to these liberties.Constitutional arrangements force the majority to postpone the realization of its will and compel it to make more deliberate decisions.Procedural limitations are said to be used in this and other ways to reduce the shortcomings of the majority principle.Whether it is justified depends on whether there is some greater right to freedom.There is no question of compensating economic and social interests at all here. A tenet of classical liberalism is that the right to political liberty is inherently less important than the right to liberty of conscience and liberty of the person.If one had to choose between political liberty and all other liberties, the rule of a wise prince who recognized the latter and favored the rule of law might be much more attainable.According to this view, the main value of the participatory principle is to ensure that the government respects the rights and welfare of the governed.Fortunately, however, we do not always have to assess the relative total importance of these different liberties.The usual approach is to apply the principle of equal interest to the regulation of the overall system of liberty, without requiring us either to abandon the principle of participation altogether or to allow it to dominate without limit.Instead, we should narrow or widen its scope until the threat to liberty, through the near loss of control over those in power, is just balanced with the guarantee of liberty, through the wider use of constitutional means.Making decisions is not an all-or-nothing kind of thing.It is a matter of comparing minor differences in the scope and regulation of different liberties with each other.The priority of liberty does not preclude marginal exchange within a free system.Moreover, the principle of primacy of liberties recognizes that some liberties, such as those involved in the principle of participation, are not so essential to their primary role in protecting other liberties, although it is not required to do so.Of course, different views about the value of liberty influence different people's views on how to arrange a comprehensive system of liberty.Those who value the principle of participation more will be prepared to risk more personal liberty in order to give greater prominence to political liberty.It would be best not to create such a contradiction, but in any case, under favorable conditions, it should be possible to find a constitutional procedure that would give effect to the principle of participation without endangering other liberties. It is sometimes objected that the majority rule, however limited it may be, takes no account of the strength of the desires of the people, since the majority may override the strong feelings of a minority.This criticism is based on the erroneous view that the degree of desire should be a matter of legislative consideration (see section 54).On the contrary, whenever a question of justice is raised, we cannot judge by the intensity of our feelings, but must look to the greater justice of the legal order.The basic criterion for judging any procedure is whether its probable outcome is just.A similar answer can be given to the question whether the majority rule is expedient in cases where the votes are fairly evenly distributed.Everything depends on whether the outcome is likely to be just.If the various parts of society have a reasonable trust in each other, and all share a common conception of justice, then the barely majority rule may have considerable success.Without this basic agreement, it is more difficult to justify the majority principle, since just policies are less likely to be enforced.However, if society is full of mistrust and hostility, then maybe there is no program to rely on.I'm not going to investigate this issue further.I mention these well-known arguments about the majority rule only to emphasize that the test of constitutional arrangements is always the full balance of justice.So long as it is a matter of justice, the desire should not be considered.Of course, in the present circumstances, lawmakers must be careful with strong public sentiments.People's sense of righteous indignation, no matter how legitimate, will set boundaries on what is politically attainable, and public opinion will affect the implementation of strategies within those boundaries.However, questions of strategy should not be confused with questions of justice.If a bill of rights guaranteeing freedom of conscience, as well as freedom of thought and assembly, is possible, it should be passed.No matter how emotionally out of tune one may feel about these rights, one should try to keep them alive as long as possible.The opposing forces of attitude have nothing to do with the question of legitimacy, but only with the practicability of the arrangement of liberties. Exactly the same method can be used to justify unequal rights to political liberties.One accepts the point of view of the representative citizens at the Constitutional Convention, and evaluates the whole system of liberties as one understands it.But this case has an important difference.We must now reason from the perspective of those with lesser political liberties.Some inequality in the underlying structure must often be justified to the disadvantaged.This is true of any basic social good, especially of liberty.Thus, the priority rule requires us to point out that the less favored can accept inequality of rights in exchange for the stronger protection of their other liberties resulting from this restriction. Perhaps the most obvious form of political inequality is the violation of the one-person-one-vote norm.However, until modern times, most authors denied equal universal suffrage.In fact, individuals are not proper subjects at all to be considered representational rights.It was often the interests that were represented, and the Whigs and Tories had disagreed on whether to give a seat to the emerging middle-class interests as well as the landowner and church interests.For others, it is about representing regions, or cultural formations, just as one speaks about representing the agricultural and rural elements of society.At first glance, these different representations may seem unjust.The degree to which they deviate from the one man one vote is a measure of their abstract injustice and an indicator of the strength of the various reasons for confrontation that must arise. It often turns out, however, that opponents of equal political liberty present their reasons in the required form.At least they are prepared to argue that political inequality is in the interest of those with lesser liberties.Take for example Mill's view that people with higher intelligence and better education should have extra voting rights so that their opinions have greater influence.According to Mill, majority voting in this case is consistent with the natural order of human life, because when people run businesses with common interests, they recognize that although all have a voice, everyone has a voice. Servings don't have to be equal.The judgment of the wiser and more informed should have greater influence.This arrangement is in everyone's interest and is consistent with people's sense of justice.The affairs of state are just such a common concern.While all should in fact have a vote, those with greater capacity to manage the public interest should have a greater voice.Their influence should be great enough to enable them to prevent class legislation of the uneducated, but not so great as to enable them to enact class legislation for their own benefit.It is best that those with higher intelligence and judgment can act as a stabilizing force on the side of justice and the common good. Under normal circumstances, it can often play a decisive role in making things develop in the right direction.Mueller argues that everyone, including those whose voting rights are less important, would benefit from the arrangement.Of course, as far as the actual situation is concerned, this argument does not go beyond the general concept of justice as fairness.Mill does not make it clear that the benefit to the uneducated is to be judged first of all against greater guarantees of their other liberties, although his reasoning suggests that he thinks this is the case.In short, this argument can only be so if it is to make Mill's argument fit within the constraints imposed by the primacy of liberty. I don't want to criticize Mueller's package.My description of this scheme is for illustrative purposes only.His views make it possible to understand why political equality is sometimes considered less important than the right to equal liberty of conscience or personal liberty.Suppose that government aims at the common good, that is, it maintains conditions and achieves goals that are equally beneficial to everyone.So long as this supposition holds, and some persons of higher intelligence and judgment can be discovered, others are willing to trust them, and to admit that their opinion has greater weight.Passengers on board are willing to let the captain steer the course because they believe he is the better informed man and shares their desire to arrive safely.To do this, not only must there be unity of interests, but more obviously, high skill and strong judgment are required.In this way, the ship of the state resembles in some respects the ship of the sea; and in this respect the right to political liberty is in fact subordinate to other categories which, so to speak, define the inherent good of the passengers. kind of free.If these assumptions are accepted, then majority voting is perfectly just. Of course, the argument for autonomy is not exactly a means.The right to equal political liberty, when its reasonable value is guaranteed, must have a profound impact on the moral nature of civic life.The interrelationships of citizens are firmly grounded in distinct social formations.It was seen that the medieval adage "If your business is your business, let it hang up" was taken seriously and declared the will of the people.The right to political liberty understood in this way is not to satisfy the individual's desire for self-discipline, let alone to realize his pursuit of power.Participation in political life is not about self-restraint, but about giving him an equal say, like everyone else, in how the basic conditions of society are arranged.Nor is it gratified by the ambition to dominate others, for each must now lower his claims to that which all can admit to be just.The general will to take care of and take into account the beliefs and interests of each individual provides the basis for civic friendship and the shape and character of political culture. Moreover, since equal political rights have their own legitimate value in self-government, the role of self-government is to increase the self-esteem and sense of political competence of ordinary citizens.His sense of self-worth is developed within this smaller group of his society and is therefore affirmed throughout the social structure as a whole.Since he is going to vote, he will have political opinions.He spent years and years thinking hard about forming his views, but not for the significant rewards his political influence might bring him.Rather, it is a pleasurable activity itself that leads to a wider conception of society, to the development of his intellectual and moral faculties.As Mill puts it, he is asked to weigh interests different from his own, and is guided by a conception of justice and the public good rather than by his own inclinations.When he has to explain his point of view to others and justify it, he must have recourse to principles acceptable to others.In addition, Mill also believes that if citizens are to develop a positive awareness of political responsibilities and obligations, that is, simply being willing to obey the law and the government is not enough, this kind of education that cultivates a spirit of public welfare is necessary.Without this thought-feeling that unites more, people are alienated from each other, isolated in their own little groups, and may not be connected emotionally beyond the narrow circle of family or friends.Citizens no longer see each other as like-minded people who together can come up with some idea of ​​the common good, but rather as rivals, or obstacles to the achievement of each other's goals.Mueller and others have made all these insights public.They point out that equal political liberties are not exactly a means.These freedoms strengthen people's sense of self-worth, heighten their intellectual and moral sensibility, and provide the basis for a sense of responsibility that is integral to the stability of just institutions.As to the relation of these questions to the human good and the sense of justice, I shall leave them for Part III, where I shall relate them under the heading of the idea of ​​the just good. I now intend to consider the issue of individual rights protected by the principles of the rule of law.As before, my aim is not only to relate the idea of ​​individual rights to principles of justice but also to illustrate the idea of ​​the primacy of liberty.I have already pointed out (Section 10) that the idea of ​​formal justice, that of regular and just administration by public regulation, becomes the rule of law when applied to legal systems.There is an injustice in which judges and other persons in authority fail to properly enforce the rule of law, or to properly interpret the rule of law.In this respect, it would be a pity not to consider serious violations such as bribery and embezzlement, or the abuse of the rule of law to punish political opponents, but to consider the ingenious distortions produced by prejudices that actually discriminate against certain groups in the judicial process more telling.We may call this regular and just administration of law (in this sense, rational administration) "regular justice."It is a more illuminating word than formal justice. The rule of law is obviously closely related to the right to liberty.We can see this by considering a certain conception of law and its immediate relation to maxims of definite and regulated justice.The rule of law is a coercive system of public rules established for rational persons to regulate their behavior and provide a basis for social cooperation.If these regulations are just, they establish the basis for legitimate expectations.They are reasons why people can depend on each other, and they can certainly disapprove of these reasons if their expectations are not met.如果这些要求的基础是不可靠的，那么人们的自由权的界限也就是不可靠的。当然，还有其他一些规章也同样具有许多这样的特征。比赛规则和私人团体的规则，同样也是为有理性的人而设的，目的就是为了规定他们的活动方式。鉴于这些规则是公平的和正义的，那么一旦人们参加了这些安排并接受了随之而来的利益，由此而产生的义务就构成了合法期望的基础。法制的特点就是它的广泛范围和它对其他团体的管理权力。一般地说，它所规定的各种宪法手段，至少对比较极端的强制方式取得了专有的合法权利。私人团体能够使用的强制手段是受到严格限制的。此外，法律制度在一定的明确规定的范围内行使最后的权威。它的特点也表现在它所管理的活动的广泛范围和它所要保障的利益的基本性质。这些特点只是反映了这样的事实：法律规定了基本结构，其他一切活动都要在这个结构范围内进行。 如果法律制度就是为有理性的人而设的公共规章制度，那么，我们就能对与法治相联系的正义准则作出说明。这些准则是任何充分体现法制思想的规章制度都可能遵循的准则。当然，这不是说现存的法律在所有情况下都一定符合这些准则。相反，这些准则是从一种理想的观念得出的，而至少就大多数情况来说，法律应该接近于这种观念。如果到处都出现了偏离有规则的正义的现象，那就可能产生一个严重的问题，即是否存在一种与旨在促进独裁者的利益或仁慈的专制君主的理想的一批特殊制度相对立的法律制度。对于这个问题，通常没有任何明确的回答。认为法律制度就是公共规章制度这种看法的要点是，它使我们能够得出与合法性原则相联系的准则。此外，我们还可以说：在其他条件相等的情况下，如果一种法律制度更全面地实现了法治的准则，那么它就是比另一种法律制度得到了更公正的执行。它将会为自由权提供一种更牢固的基础，并为建立合作安排提供一种更有效的手段。然而，由于这些准则仅仅保证公正而有规则地执行规章（不管是什么规章），它们与不正义是可以并存的。它们对基本结构规定了相当不充分的然而又决不是可以忽视的限制。 让我们首先来讨论一下义务包含能力的准则。这个准则指出了法制的几个明显特征。首先，法治所要求和禁止的行动必须是人们理应能够做到的或能够避免的行动。规章制度是为有理性的人而设的，目的是为了指导他们的行为，因此，它所关心的是他们能做什么和不能做什么。它决不可以规定一种要人们去做无法做到的事的义务。其次，义务包含能力的观念表达了这样的思想，即制定法律和发布命令的人是秉公办事的。立法者和法官以及执行规章制度的其他官员，必须相信法律是能够得到遵守的；他们是要假定，发出的任何命令都会得到执行。此外，不仅官方必须秉公办事，而且他们的公正也必须得到受他们的法令管辖的人们的承认。只有在人们普遍认为法律能够得到遵守以及命令能够得到执行的情况下，它们才会被承认是法律和命令。如果这一点成了疑问，那么官方的这些行动大概就不是为了指导人们的行为，而是另有其他目的了。最后，这个准则还规定，法制应该承认不可能执行也是一种辩护理由，至少是一种可以减轻处罚的情节。法制在实施规章时，决不能认为无执行能力是与问题无关的。如果不是严格地按照有无能力采取行动这个标准而动辄进行处罚，那就会使自由权不堪负担。 法治还包含这样的准则，即对类似的案件用类似的方法来处理。如果不遵守这个准则，人们就不能按照规章来管理自己的行动。当然，这种观念也并不能说明很多问题。因为，我们必须假定，所谓类似这个标准，是由法规本身和用来说明法规的原则规定的。然而，对类似案件作类似裁决的准则，大大限制了法官和其他当权者自由处置的权限。这个准则迫使他们去证明，他们根据有关的法规和准则对人们作出区别是有道理的。在任何特定的案件中，如果法规确实是复杂的，需要予以说明，那么，要为一种任意的裁决进行辩护，可能是很容易的。但是，随着案件数量的增加，再要为有偏见的裁决进行似是而非的辩护，就比较困难了。始终如一的要求当然适用于对所有法令的解释，也适用于各级辩护。最后，为差别对待的裁决辩护的那些头头是道的论点就更加难以提出，而想要这样做的企图也更不能令人信服。这个准则对有关衡平法的案件是同样适用的，就是说，如果既定规章引起了意想不到的困难，那就应该作例外情况处理。但只能以此为条件：由于没有区分这些例外情况的明确界线，那么事情就会发展到几乎任何差别都要区别对待的地步，对法规的解释就有这种情形。权威性的决定原则适用于这些事例，所以只要有判例或正式宣布的判决就行了。 无法律即不构成犯罪的准则及其所包含的规定，也来自法制思想。这个准则要求，法律应该是众所周知的，明确宣布的；法律的含义应有清楚的规定；法令的条文和意图都必须具有普遍性，而不能用作损害可能被明确指名（剥夺公权条例）的特定个人的一种手段；至少对比较严重的犯罪应有严格的解释；刑法的追溯效力不应不利于适用刑法的人。这些规定都是用公共规章管理行为这个观念所固有的。如果法规不是明确宣布哪些行为是受到禁止的，公民就会无所适从。此外，虽然可能会有一些临时的剥夺公权条例和追溯既往的法令，但这些条例和法令在法制中不应太多，也不应成为法制的特征，否则法制就是另有目的了。一个暴君可能会不预先通知就修改法律，并按照修改后的法律来惩治（假定这是一个恰当的字眼）他的臣民，因为他很乐于知道，从遵守他所给予的处罚看，他的臣民要用多少时间才能弄清楚这些新规章是什么样的规章。但是这些规章不是法制，因为它们不是通过为合法期望提供基础来组织社会行为的。 最后，还有那些规定自然正义观念的准则。这些准则旨在为维护司法过程的完整性提供指导方针。如果法律是为指导有理性的人而设的指令，那么法院就必须以恰当的方式应用和实施这些规章。必须作出认真的努力来确定是否发生了违法行为，从而施加正确的处罚。因此，法制必须为有条不紊地进行审讯和听证作出规定。它必须包含保证合理调查程序的取证规则。虽然这些程序会有所变化，但法治要求有某种适当的手续，即为了用与法制的其他目的相一致的方式弄清事实而合理设计出来的一种手续，而所谓事实就是是否发生以及在什么情况下发生了违法行为。例如，法官必须是独立自主的和公正无私的，任何人都不可以判决与自己有关的案件。审讯必须是公平的和公开的，它不应受到公共鼓噪的损害。自然正义准则是要保证公正而有规则地维护法律制度。 现在，法治与自由权的关系已经相当清楚了。我曾经说过，自由权是一种由体制规定的权利和义务的复合体。各种各样的自由权为我们可能愿意去做的事情作出了明确的规定，如果我们愿意去做什么事情，而自由权的性质又表明这样做是恰当的，那么别人就有义务不去对我们这样做进行干涉。但是，如果由于一些法规的含糊不清而使无法律即不构成犯罪这个准则遭到了破坏，那么我们可以自由去做的事也同样是含糊不清的。我们的自由权的界限是不确定的。就这一点来说，自由权由于对它的实施的合理担心而受到了限制。如果类似案件不是以类似的方法来处理，如果法律不承认不可能执行也是一种辩护理由，等等，那么也会产生同样的结果。因此，在有理性的人为他们自己规定最大限度的平等自由权的协议中，合法性原则具有一种坚实的基础。为了有把握地拥有和运用这些自由，一个井然有序的社会里的公民一般都会希望使法治得到维护。 我们可以用稍微不同的方式得出同样的结论。可以合理地假定，即使在一个井然有序的社会里，对于保持社会合作的稳定性来说，政府的强制权力在一定程度上是必要的。虽然人们知道，他们具有共同的正义感，每个人都希望恪守现有的安排，但他们仍可能对彼此缺乏信任。他们可能会怀疑某些人没有在尽力，因此他们也会倾向于不去尽力。如果人们普遍地留意于这种倾向，那么最终就会使合作安排遭到破坏。如果对规章没有权威性的解释和执行，那就特别容易找到破坏规章的借口，而正是由于这一点，对别人不遵夺自己的责任和义务的怀疑增加了。因此，在相当理想的条件下，也很难设想存在一种以自觉为基础的成功的所得税安排。这种安排是不稳定的。按照规定对以集体制裁为后盾的规章作公开解释，其作用完全是为了克服这种不稳定性。政府通过实施公共的惩罚制度，来消除认为别人不遵守规章的根据。仅仅是为了这一点，采取强制手段的统治者也大概是永远需要的，即使在一个井然有序的社会里，为维持法律所作出的制裁并不严厉，也许甚至根本就没有必要施加这种制裁。相反，有效的惩治机构的存在，保证了人们的相互安全。我们可以把这种主张和支持这种主张的推理看作是霍布斯的论点（第42节）。 制宪会议上的各方在创建这个制裁制度时，必须估量它的缺点。它至少有两类缺点：一类缺点是维持制裁规构要由税收之类的收入来负担费用；另一类缺点是这些制裁可能会不恰当地干扰有代表性公民的自由，从而使他的自由权受到威胁。只有在这些缺点小于自由权由于不稳定而受到的损失时，建立强制性机构才是合理的。假定情况是这样，那么最佳安排就是把这种可能性减少到最低限度的安排。显而易见，在其他条件相等时，如果按照合法性原则公正而有规则地执行法律，那么自由权受到的威胁就会较少，尽管强制机构是必要的，但明确规定它的作用范围，显然是至关重要的。如果公民们知道什么事要受到它的处罚，知道哪些事是他们可以做的或不可以做的，那么他们就能据此来制定他们的计划。遵守正式宣布的规章的人不用担心自己的自由权会受到侵犯。 根据以上的论点，我们显然有必要对刑罚制裁予以说明，不管这种制裁对理想理论来说是多么有限。鉴于人类生活的正常情况，有些刑罚制裁安排是必要的。我曾经认为，证明这些制裁的正当性的原则可以从自由权原则引伸出来。无论如何，在这种情况下，理想的观念表明，这种非理想的安排是如何建立起来的；而这是符合理想理论是根本的理论这一假设的。我们还知道，责任原则不是以处罚本来就是为了警告或斥责这种思想为基础的。相反，正是为了自由权本身的缘故，处罚才得到了承认。除非公民能够知道什么是法律，并得到公平的机会去考虑法律的指导作用，否则刑罚制裁对他们就是不适用的。这个原则只是把法制看作是为了指导有理性的人的合作才为他们设立公共规章制度的结果，是给予自由权以适当重视的结果。我认为，这种责任观点使我们能够说明刑法按照犯罪意图而予以承认的大多数辩解和理由，并认为这种观点能够对法制改革起指导作用。然而，这些问题无法在这里深入讨论。这里只要指出这样一点就行了，即理想理论需要把刑罚制裁当作一种稳定手段而予以说明，同时指出对部分遵守理论的这一部分内容的论证方式。而对于自由权原则导致责任原则问题，则尤需详加说明。 部分遵守理论中出现的道德上的两难选择，也将从自由权优先的角度来予以考察。例如，我们可以想象一种不幸的情况，在这种情况下，也许可以不用那么强烈地坚持要求遵守法制准则。例如，在某些极端的不测事件中，可以要求人们对违反责任包含能力这一准则的某些违法行为负法律责任。假定敌对的教派由于尖锐的宗教对抗而激动起来，于是收集武器，组织武装，准备内战。面对这种形势，政府可以通过法令，禁止收藏枪支（假定收藏枪支本来并不违法）。法律可以认为，在被告的房屋里或地产上发现武器，就是定罪的足够证据，除非他能证明这些武器是别人放在那里的。除了这个附加条件外，诸如没有收藏枪支的意图，不知道这就是收藏枪支，以及符合妥善保管枪支的标准等等辩解，统统被宣布为不相干的。据说，接受这些正常的辩解，就会使法律失去效力，使法律不可能得到执行。 虽然这条法令违反了义务包含能力的准则，但由于它对自由权损害较小，它可能会为有代表性的公民所接受，至少在施加的处罚不太严厉的情况下是如此（这里我假定，比如监禁就是剥夺自由权的一种严厉的手段，因此必须考虑拟议中的处罚的严厉程度）。如果从立法阶段来考虑这种形势，人们可能会认为，建立准军事团体（在通过法令时可以预先加以防止）对普通公民的自由的威胁，要比他们因收藏武器而负有严格的法律责任的威胁大得多。公民们可能认定，法律是两害之轻者，从而承认这样的事实：虽然他们可能由于他们不曾做过的事而被认为有罪，但他们的自由权由于任何其他行动而受到的威胁可能会更大。既然存在着严重的意见分歧，那就没有办法可以防止发生我们通常认为的某些不正义的行为。 结论仍然是：限制自由权的论据来自自由权原则本身。无论如何，自由权优先问题在某种程度上转而成为部分遵守理论了。因此，就所讨论的情况来说，某些人的较大的善并没有与另一些人的较小的善取得平衡。较小的自由权也没有由于较大的经济和社会利益而为人所接受。相反，一切取决于以代表性公民的基本平等自由权为形式的共同善。由于不幸的环境和某些人的不正义的图谋，自由权当然要比在一个井然有序的社会里所享有的少得多。社会秩序中的任何不正义都必然会产生影响；要消除它的全部后果是不可能的。在应用合法性原则时，我们必须记住规定了自由权的全部权利和义务，从而相应地调整合法性原则的要求。有时候，如果我们要减少由于无法克服的社会弊端而导致的自由的丧失，以便在条件许可的情况下使不正义最大限度地减少，那么我们也许会不得不允许在某种程度上违反合法性准则。