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建立迫使官员守法的制度
潘维
Establish
a System of Compelling Officials to Be Law-abiding
Pan Wei
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I. Introduction
Scholars concern themselves with ways and means to restrain
abuse of power for private ends, a phenomenon very rampant
in the officialdom. Some pedants tell their students that
the “legal system” is essentially different from the “rule
of law.” But ordinary people do not understand what difference
on earth there is between the two terms. Law is promulgated
and enforced by man. Where on earth has the rule of law been
found? Who would ever refrain from abusing power and rule
the country by law but for a severe punishment mechanism?
The crux of the problem is how to compel government officials
to become law-abiding. |
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| 一. 序言
官场盛行以公权谋私利，学界关心如何制约之。学究们告诉学生们“法制”和“法治”有本质的不同，可老百姓弄不明白这两个词儿有什么不一样。法是人来制定和执行的，世上哪里有什么“法律治国”？如果没有严厉的惩罚机制，谁会不滥用权力而去“依法治国”？真正的问题是，怎样才能迫使官吏守法？
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| It is very one-sided
to presume that China has a profound tradition of government
corruption. The traditional Chinese civil servant system is
a lighthouse for East Asian political civilization. The main
stream is honesty. Honest officials were lauded. Impartiality
and honesty was worshiped. Uncorrupted officials were esteemed.
Honesty was esteemed as the “kingly way” and was the orthodox
of Chinese political civilization. It was only when Chinese
dynasties were heading for doom that corruption became rampant.
Hong Kong and Singapore are honest and uncorrupted. The government
under the Chinese Communist Party was also one of the most
honest governments in the world. We have no reason to consider
all governments run by Chinese as corrupt. The Chinese people
cherish great hatred for corruption and judge the quality
of their government by the yardstick of impartiality and justice.
People support the government because of its honesty, not
because of its support for their group interests. They would
oppose their government if it became corrupt, not because
it did not represent their group interests. Chinese urban
residents are very enthusiastic about reporting corruption
cases so far as the practice proves effective. Provided with
a good system, China will leave no room for any corruption
cover up. |
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常有人以为中华有政府腐败的深厚传统。这是个很片面的看法。中华传统文官体制是东亚政治文明的灯塔，其主流是廉洁，赞美的是“清官”，信奉的是“公正廉明”
和“两袖清风”。廉洁是“王道”，是我国政治文明的正统。我国的王朝走到穷途末路之际才盛行腐败。港新两地的政府是廉明的，中国共产党政府也曾属世界上最廉洁的政府之列。我们没有理由认为华人的政府必然腐败。我国人民痛恨腐败，以公平和公正来评价政府的质量。人民支持政府是因为政府廉洁，不是因为政府代表了本集团的利益。人民反对政府是因为政府腐败，不是因为政府不代表自己所属的利益集团。只要有效，举报腐败是华人市民非常热衷的事情。有了好的制度，腐败在我国无处藏身。
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| Nothing is more
threatening to the people’s freedom than governmental abuse
of power and governmental disobedience to law. Due to the
conventional doctrinal cult, quite a number of people in China
argue that only when there is democracy can the government
be compelled to be law-abiding. Only “good” laws can lead
to the rule of law. This was a misunderstanding, and a harmful
misunderstanding at that. Good rule over the people never
led to the rule of law. Nor did it improve the rule of law
either. Parliamentary democracy can change the contents of
law, but the change of law contents did not mean the rule
of law. The rule of law in Western political civilization
was not an outcome of democracy, but rather originated in
the long-standing legalism (or the emphasis on the independence
of law and law career). The rule of law in Japan was not a
product of democracy either. It was founded in the Reformation
Movement instead. (1) Almost all non-Western parliamentary
systems fell short of the rule of law. Just look at those
countries that had just got involved in the “third democratic
wave” and you will see if they have increased or sharply decreased
the elements of rule of law. And then have a look at Hong
Kong just under our very noses, where there was basically
no democracy. But how many countries’ government officials
were more fearful of law than those of Hong Kong? |
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| 对人民自由的威胁莫过于政府肆行妄为，不遵守法律。由于“主义迷信”的惯性，我国颇有些人认定只有民主才能迫使政府守法，才有“好”的法律，才有法治。这是个误解，而且是个有害的误解。民之治从未曾导致过法之治，民之治也不会增加法之治。代议制民主能改变法律的内容，但法律内容的变化并不是法治。西方政治文明里的法治不是民主的结果，而在其源远流长的法律主义传统（legalism,
即强调法律和法职业的独立）。日本的法治亦非民主的结果，而是“明治维新”奠定的。 非西方世界里的代议制几乎没有不欠缺法治的。看看被卷人“第三次民主浪潮”的国家，那里的法治是增加了还是大大减少了？再看看我们眼皮底下的香港，基本没有民主，可世上有几个国家的官员比香港官员更畏惧法律？
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| Democratic elections
at an interval of several years cannot guarantee the President
and parliamentary members against misconduct. To warn against
our jumping from the mire of superstition in dictatorship
to the quagmire of election superstition, this author is trying
here to explain what sort of a system would be successful
in compelling government observance of law, or what sort of
“rule of law” should be enforced for this purpose.
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| 若干年一次的民主选举不能保证总统和议员们不胡作非为。为了提醒我们警惕从专政迷信的陷阱跳入选举迷信的陷阱，笔者在此企图解释怎样的制度才能迫使政府守法，即什么导致“法之治”。 |
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| II. Contents of
Rule of Law and the Form of Government in China |
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| 二．法治的内容和中国政体 |
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| In a book entitled
“The Battle of Democracy,” Graham wrote, “Until the 18th century
everybody had been aware what democracy was.” (2) Democracy
was a system under which all adult citizens regularly elected
their national top leaders. (3) The rule of law referred to
a system whereby the authority of law was higher than that
of the government, compelling the leaders to obey the law.
Since the people were not the “law,” so the rule of the people
could not possibly the rule of law. In modern times a parliamentary
system emerged replacing the direct democracy for the majority
of the people in ancient Greece with indirect democracy for
a small number of elected representatives, i.e., the “Rule
of Parliament.” But the parliamentary system was not the same
thing as the rule of law either. The rule of law is different
from democracy in four basic aspects. |
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在一本题为《民主之战》的书里，格莱海姆写道：“直到18世纪，所有人都清楚地知道民主是什么，可几乎没人支持民主制。现在则倒了过来，所有人都支持民主制，可再也没人知道民主是什么。”
民主是全体成年公民定期选举本国最高层领导人的制度。 法治指法的权威高于政府权威，迫使领导人服从法律的制度。“民”既然不是“法”，“民治”与“法治”就不可能是一回事。近代兴起了代议制，变古雅典的多数人民之直接民主为少数民选代表之间接民主，即“议会之治”。代议制与法治也不是一回事。法治与民主有四项基本差异。
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| 1. It is different
in the concept of power. Democracy places the hope of justice
on the extent of people’s participation in the government.
“People’s sovereignty,” “parliamentary sovereignty,” “The
People’s Congress is the supreme power organ” are all manifestations
of such an ideal. The main method to practice people’s participation
in government is to hold general elections of the top leaders
and to pass resolutions by the majority on important government
policy decisions. Democracy holds that the more frequent the
general elections and resolutions by the majority, the more
people who take part in the general elections and resolutions,
the more guaranteed the people’s welfare would be. On the
other hand, the proponents of the rule of law pin their hope
of justice on the extent of government power under the restraint
of law, on the freedoms of the individuals. “Law is supreme,”
“sovereignty of the constitution,” “Everybody is equal before
the law” are all expressions embodying this ideal. Unlike
the democratic method, the main method of setting up the authority
of law is to institute a system of check and balance of powers.
That is, it is stipulated that the different governmental
functional organs shall be independent of each other, their
powers are clearly defined and no mutual transgression is
permitted. The proponents consider that the more clearly the
law defines the functions of the government, the more severe
the punishment dealt to government offense of law, the more
the freedoms of the individuals will be guaranteed. The check
and balance of powers reduces the responsibility or the monopolistic
power of the top leaders for interest groups. It obliges them
to respect the law-stipulated power limits. The key to the
system lies in judicial independence. The judicial branch
is not responsible to the voters or the executive. Since the
judicial organ is independent, it will have the means to penalize
the executive for law offense and the executive is brought
under control. In short, while democracy stresses on realizing
group welfare through people’s rights to participate in political
power, the rule of law emphasizes the guarantee of individual
rights (or freedoms) through restricting the power of the
government. |
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| 第一 法治与民主的权力理念不同。民主将正义寄托在人民参与政府的程度上。“主权在民”，“议会主权”，“人民代表大会是最高权力机关”等表述均体现这种理念。实行人民参政的主要方法是普选最高层领导人和公决重要的政府决策。民主主义者认为，普选和人民公决的频率越高，参与普选和公决的人数越多，人民的福利就越能得到保障。法治则将正义寄托在政府权力受法律约束的程度上，寄托在个人的自由权利上。“法律至上”，“宪法主权”，“法律面前人人平等”，等表述均体现这种理念。与实施民主的方法不同，树立法律权威的主要方法是分权制衡，即规定政府不同功能的机构各自独立，权力界限清楚，不可相互侵扰。法治主义者认为，法律对各类政府职能界限的规定越清晰，对政府违规的惩罚越严厉，个人的自由就越能得到保障。分权制衡减少领导人对利益集团负责或独断专行，使之尊重法律规定的权力界限。制衡的关键是司法独立，司法不对选民和执政者负责。有了独立的司法机构，就有了惩罚执政者违法的手段，执政者就受约束。概言之，民主强调通过人民的参政权来实现集团的福利，法治强调通过限制政府的权力来保障个人的权利（即自由）。 |
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| 2. Since they are
different in concept, the rule of law and democracy have different
powers and functions. Parliamentary democracy grants the people’s
deputies the power to rule and the power to set up a government
approved by the majority of the people. Due to such an objective,
parliamentary democracy stresses on legislation. Only rules
endorsed by the majority of the people’s deputies are legitimate.
Otherwise there is no reason for compliance. Instead of setting
up a government, the principal function of the rule of law
is to administer it. Wherever the laws may come from, no matter
whether the government is elected or not, so long as the laws
are valid and conform to the “basic law,” the government must
enforce them without fail. The executive is given no discretion
rights. Thus the rule of law emphasizes law enforcement and
demands that government officials act according to law. The
government can only do what the law stipulates explicitly
while the people are permitted to do anything unless explicitly
prohibited by law. Especially in modern times, the judicial
branch has been vested with the power to punish the executive
branch for violations of the basic law especially the laws
protecting popular rights to articulation, publishing, assembly
and association. The rule of law also demands that, no matter
what the people’s will is, no matter where the basic law comes
from, legislation by the people’s deputies must conform to
the basic law. The basic law is not subject to formulation,
change or interpretation according to the will of people's
deputies. Otherwise the authority of people’s deputies will
overshadow the authority of law. If this is the case, then
the government will be unrestricted. In short, the function
of democracy is to defend the government’s power to govern,
and legislation is of paramount importance. On the other hand,
the function of the rule of law is to restrict the legislation
and administrative power of the executive branch. Law enforcement
is of paramount importance. |
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| 第二，因为理念不同，法治与民主的权力功能不同。代议制民主授予人民代表统治权，建立人民多数认可的政府。出于这样的目标，代议制民主重在立法，只有人民代表之多数所同意的规矩才是正当的，否则就没有理由服从。法治的主要职能不是建立政府，而是管理政府。无论法从何来，无论政府是否经普选产生，只要是有效合“基本法”的法，政府就必须执行，不给执政者自由裁量权。因此，法治重在执法，要求政府官员依法办事。政府只能作法律明文规定的事，人民则可以作一切法律没有明文禁止的事。近代以来的基本法特别保护人民的言论、出版、集会、和结社权，政府侵犯这些权利要受司法部门的惩罚。法治还要求，无论人民代表的意愿如何，无论基本法是怎么来的，人民代表的立法必须符合基本法。基本法不可依着“人民代表”的意愿任意制定、变更、和解释，否则法的权威将被“人民代表”的权威淹没。当法的权威被人民代表的权力淹没了，政府就不受限制。概言之，民主的职能是为政府的管理权辩护，以立法为要。法治的职能是以分权来限制政府的立法和管理权，以执法为要。 |
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| 3. Since they have
different functions, democracy and the rule of law have different
power organs. Elected legislatures are the bases of democratic
power. They are mainly the Parliament and the chief executive
either elected or decided upon by the number of seats in the
Parliament. They also include the political office holders
that are recommended by the chief executive or are in or out
of power together with the chief executive. Non-elected law
enforcement organs are the power bases of the rule of law.
They are mainly the career civil service system and the neutral
law court system that are free from the interference of the
political officers. The civil service system is not elected.
It does not come under the influence of political officers.
Its responsibility is mainly to perform routine administrative
power according to the criterion of law. Still less is the
law court system elected. The responsibility of a career judge
is mainly to judge neutrally whether the executive has offended
law in his administration or not. For example, if an executive
wants to punish a criminal, that criminal still has the right
to resist the punishment through a lawyer and the court, and
prevent the executive from making any discretion to woo his
constituency. No civil system or court in any country is completely
independent of the general political situation. But it is
essentially different to have or not to have an independent
power base. |
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| 第三，因为功能不同，民主与法治的权力机构不同。民选的立法机构是民主的权力基地，主要是议会和根据占有议席数量决定的（或民选的）最高行政首长，还包括由最高行政首长推举，与其共进退的政务官。非民选的执法机构是法治的权力基地，主要是不受政务官更迭干扰的职业文官系统和中立的法院系统。公务员系统不经民主选出，人事上不受政务官左右，职责主要是以法律为准绳行使日常行政权。法院系统更非民选，职业法官的职责主要是中立地判断执政者的行政是否违法。例如政府欲惩罚某个罪犯，犯人依然有权通过律师和法庭来抵抗政府的惩罚，使政府不能随意作讨好选民的处置。没有那个国家的文官系统和法院能完全独立于政治大局，但有没有独立的权力基地是质的区别。 |
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| 4. Since they have
different organs, democracy and the rule of law have different
power regulations too. While democracy regulations are elections
plus (relatively majority decision; those of the rule of law
are examinations plus independent meritocracy. While the former
relies on the number of votes in close combination with factional
interest, the latter relies on merits and meritocracy, taking
comprehension and loyalty as the criterion. No career civil
servants and judges live in vacuum. They can never be “absolutely”
neutral unless they live without human food and lodgings.
But they are much more neutral than the open representatives
of interest groups are. They are not responsible to the voters
or to the executives. They are only liable to law and are
therefore relatively impartial. |
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| 第四，因为机构不同，民主与法治的权力规则也不同。民主的规则是选举加（相对）多数决；法治的规则是考试加独立的考绩（meritocracy）。前者靠票数，与党派利益紧密结合；后者依赖成绩和考绩，以对法律的理解和忠诚为准绳。职业的公务员和法官不是生活在真空里，只要食人间烟火，他们就不可能“完全”中立。然而他们比利益集团的公开代表要中立得多，他们不必向选民负责，不对执政者负责，只对法律负责，所以相对公正。
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| In short parliamentary
democracy believes that the people will eventually be able
to elect good leaders, assuming that a reshuffle once in several
years will guarantee welfare for the people. The rule of law
does not believe in anybody, assuming that only independent
punishment mechanism can stop the executives from misdeeds.
Hence, it emphasizes the check and balance of government power---
judicial independence, emphasizing the stability of the basic
law and the legislation according to law. |
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总之，代议制民主相信人民终能选出好的领导人，认为数年一次“换人做做看”的机会能保证人民的福利。法治不相信任何人，相信独立的惩罚机制能制止政府胡作非为，因此强调政府内部分权制衡
-- 司法独立，强调基本法的稳定 -- 依法立法。
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| Due to lack of
understanding about the check and balance theory, Chinese
fellow nationals often mistake elections as the check and
balance. If we believe power can only be controlled by power,
then government power must be controlled by government power.
Democracy can generate government power, but it cannot restrain
government power. |
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国人因缺少对制衡理论的理解，经常误以选举为制衡。如果我们相信“权力只能被权力来制约”，那么，只有政府的权力才能制约政府的权力。民主能产生政府权力，但并不制约政府权力。
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| Rule of law and
democracy are different from each other in concept, functioning,
organs and regulations, and even at odds with each other.
So the problems they are fit to resolve are different too.
Democracy can force the government to open up and stop a certain
social group from monopolizing political power and make it
possible for interest groups to compete for government power
freely, thus guaranteeing the interests of the main stream
groups will be represented in legislation. The rule of law
checks government power with government power, and compels
the government to administer according to regulations and
thus to guarantee personal freedoms and a free order. |
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| 法治与民主在理念、功能、机构、和规则上都不同，甚至相互矛盾，所以两种制度能解决的问题也各不相同。民主能迫使政府开放，杜绝某个社会集团对政权的垄断，让利益集团自由竞争政府权力，从而保障主流集团的利益在立法中得到代表。法治以政府的权力来制约政府的权力，迫使政府循规蹈矩地行政，能保障个人的自由以及自由的秩序。 |
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| What is the main
problem in our country? It is government officers’ contempt
for law and unscrupulous misconduct and their abuse of government
power for private ends. The reason accountable for such a
problem is not that the Chinese laws are bad. The gap between
our country and the developed countries does not lie in the
gap between their legal stipulations, but in the gap between
actual efficacy of the laws. Although there are many deficiencies
in Chinese laws, it is not difficult to formulate good ones.
Furthermore, many current laws are good enough. The problem
is that it is difficult to make officials abide by them. Since
the emergence of market economic structure, the Chinese political
system can no longer control the spread of corruption. Even
the current system itself is the very origin of corruption.
This system had once won world-shocking achievements, but
now it shows an evident degenerating tendency. It is in bad
need of vigorous reforms. Only when government behavior is
restricted by the institutions, becomes transparent and subject
to rules and regulations can there be any stable “good rule.”
That is why the political reform advocated in this article
is a reform of the political system, and not a reform of the
legal contents. A transparent, law-abiding government commands
public trust, arouses confidence among the people in justice
and unites the people closely around the government. As far
as China is concerned, this is the most effective means to
eliminate domestic trouble and foreign aggression. |
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我国的主要问题是什么？是政府官员无视法律，肆行妄为，以公权谋私利。产生这样的问题不是因为我国的法律不好，我国与发达国家的差别主要不在法律条文上，而在法的实际效用上。尽管我国的法律有很多缺陷，但制定出好的法律并不难，而且很多现有的法律已经非常好，就是让官员守法难。自从市场经济结构出现，我国的政治制度就不再能控制腐败的蔓延，甚至现行制度本身就构成腐败源。这个制度曾经取得震惊世界的伟大成就，而今却颓势昭然，所以需要鼎力革新。只有政府行为受制度限制，透明守规矩，才能出现稳定的“善治”。因此，本文倡导的政治改革不是法律内容的改革，是政治体制的改革。透明守法的政府使公众信任，使人民对正义有信心，能让人民紧密团结在政府周围。对中国而言，这是消弭内忧外患的最有效手段。
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| Why are Chinese
government officials disobedient to the laws under enforcement?
This is because neither of the civil service nor the judicial
system is independent. The No. 1 man in all localities and
sectors rules supreme. Without power separation there will
be no independent organs ruling the officials. Without laws
ruling the officials, the officials are free to rule the people
as they please. They are free to make trouble for the people,
for the enterprise, for the university. When the common people
and university students make disturbances, some would say
these are the “conventional traditions of a mob.” But in the
world there are only “outrageous officials,” and never any
“mob.” Han Fei Zi (c 280 BC ~ 233 BC) said, “I have only heard
of good common people independent of chaotic officialdom.
I have never heard of any self-ruled officialdom independent
of a mob. That was why a wise sovereign always rules his ministers
instead of his common people.”(4) |
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| 我国的政府官员为什么有法不依？因为公务员系统和司法系统都不独立，各地、各行业的“第一把手”一统天下。没有分权就没有“治官”的独立机构，法不“治官”，官员便由着自己的性子去“治民”，去折腾老百姓，折腾企业，折腾大学。老百姓和大学生闹了事，就有人指为“暴民传统”，殊不知世上只有“暴吏”，并无“暴民”。韩非子（约前280-前233）讲，“闻有吏虽乱而有独善之民，不闻有乱民而有独治之吏。故明主治吏不治民。”
|
| |
| After the emergence
of market economy, there emerged two big issues in the current
form of government, which led to “chaotic officialdom.” 1.
The decentralized power was turned into feudal power. The
check and balance mechanism that had existed before the reform
disappeared. While former officials in charge might have been
punished because of using public letter paper to write private
letters, the No. 1 man of today has the monopolistic right
to all the staff, wealth and materials of the whole plot of
land. He makes the firmest grasp of the right to promote or
demote, to reward or to punish the officials and even judges
under him. The power is so centralized that he takes public
property as if his own private property. Flattery is rife
and nepotism is rampant in the officialdom, with those who
keep idle and loathe, talk big and exaggerate and lick boots
being all promoted one after another. 2. From market economy
derives “commercialized power,” degenerating the original
government austerity. Officials are enthusiastic about “commercial
activity” and merchants are of course vying to “corrupt officials.”
When officialdom is blended with the market, the irregular
market will infest with deceptions, so will be the officialdom
that lacks check and balance. A lower-grade deception consists
in talking about serving the people in your face while bickering
over the chips in selling government power behind your back.
A higher-grade deception would consist in speculating on “concepts,”
bloating political performance, trading false, big and empty
words for higher positions. |
| |
市场经济兴起之后，我国的现行政体呈现两大问题，导致“乱吏”。（1）权力下放衍变为“权力的封建化”，改革前原有的一些制衡机制消失了。原先的主管官员用公家信纸写私信都可能遭惩罚；而今的“第一把手”垄断其一亩三分地的全部人财物权，把对官吏甚至法官的升贬奖惩都捏在自己的手心里。权力的集中直弄得公产等同私产，官场拍马屁成风，裙带关系盛行于世，因循苟且，粉饰虚张，阿谀奉承之徒竞相登场。（2）经济市场化衍生出“权力的商品化”，败坏了原有的政府纲维。官员们热衷于“搞经济”，商人们当然竞相“搞官员”。当官场市场混然一体，.缺规范的市场盛行骗术，缺制衡的官场就骗术盛行。低一等的骗术是台前讲为人民服务的道德，台后谈出售公权的价码。高一等的骗术是暴炒“概念”，以虚报政绩，讲假、大、空、话来骗更大的乌纱。
|
| |
| Lacking an independent
organ to rule the officials, the officialdom will be rife
with practices of exploiting the people and robbing them of
their land. The bureaucracy will be rife with selling of official
ranks and posts and even open bribery and graft. Gone is the
“kingly way” that once prevailed, when officials were strictly
self-disciplined, treating the world honestly and sincerely,
preferring justice to proceeds, and preferring death to slavish
survival. As the kingly way declined, a wicked way sneaked
in and ran wild as a matter of course. |
| |
| 缺少了治官的独立机构，官场就盛行剥民剖地，鬻爵卖官，公行贿赂。严于正已，以诚信待天下，存大义而弃小利，宁为玉碎不为瓦全之类的“王道”不见了。自然的，王道衰，妖道兴。 |
| |
| Some people tried
to “restrain” the unlawful officials by means of “democracy,”
resorting to such recourses as “democratic appraisal.” The
result was that corrupt officials were commended while honest
ones were subject to suspicion. The best thing would be that
honest officials got promoted after “appraisal.” But without
an independent penalty mechanism, even honest officials would
become corrupted after assuming power. When an official is
about to leave his post, his riches have already piled up.
A reshuffle every four years would bring nothing but an upcoming
new official hungry for corruption. This has been the case
in the mainland as well as in “democratic Taiwan,” in democratic
India and in the democratic Philippines. Actually there has
been no exception in a society without the rule of law, Chinese
and foreign, past and present. Under market economy, how could
it be possible to keep officials uncorrupted merely by means
of self-discipline without check and balance of power? It
would be a great blunder to presume that India, the Philippines
and Taiwan were not free enough in speech and elections. The
election contests there were much more intense than those
in the United States, the political stances articulated far
more pluralistic, and freedom of speech much more extensive.
But there is no necessary relationship between democratic
elections of officials and a law-abiding bureaucracy. |
| |
| 有人试图以“民主”的方法“制约”不法官员，搞“民主评议”之类，结果贪官得好评，清官受怀疑。最好的情形是经“评议”后清官上台。但没有独立的惩罚机制，清官上台后也会变成贪官。旧官已然贪得盆满钵满，四年一换届，老百姓迎来一任捧着空盆空钵的新贪。大陆如此，民主的台湾如此，民主的印度如此，民主的菲律宾还是如此。中外古今，缺少法治的社会无一例外。在市场条件下，仅靠自律，不受制衡的权力怎能使官员不腐败？若以为印度、菲律宾、和台湾的选举和言论不够自由，那就大错特错了。那里的选举竞争比美国要激烈得多，政治立场也远远更多元化，言论更自由。官员民选与官员守法没有必然关联。 |
| |
| Under China’s “market
economy,” the key to a “good rule” lies in making the authority
of law more authoritative than that of the officials and in
strictly enforcing what the law regulates. Provided government
administration is placed under constant law restrictions,
the people will be free from unscrupulous tyranny. The people
are free only when they obey the law and not the individual.
Pan wrote, “On a free land, the government depends on law
instead of any big shot.” Henri Rousseau said, “Nothing is
more convincing to me than the fact that freedom has the same
fate as the law. It flourishes as law flourishes and varnishes
as law varnishes too. ” John Locke even pointed out, “Where
the law fails is the starting point of tyranny.” (5) |
| |
| 在我国的“市场经济”里，善治的关键是让法的权威高于官员的权威，让法律被严格执行。如果政府的行政无时不受法律限制，人民就不会被政府肆意暴虐。当人民服从的是法律而不是个人，人民才是自由的。潘恩写到：“在自由的国土上，政府不依赖大人物，而是依赖法律。”卢梭说：“没有什么能比这一点更使我深信不疑：自由与法律同命运，要么因法律而兴，要么随法律而亡。”
洛克更指出，“法律失效之处乃暴政的起点。” |
| |
| When will a government
revere the laws with awe and readily comply with them? It
will do so when it is subjected to severe punishment when
going against them. But who is to ascertain that the government
has violated laws and to punish it accordingly? If there is
an independent judicial branch and a neutral law enforcement
system in the government, the law court may relatively independently
judge whether the government is lawful or constitutional or
not in its legislation and administration. The judicial branch
is on this account entitled to “penalize” law-offending bureaucrats
“according to law.” |
| |
| 在什么条件下政府会敬畏和遵守法律？如果政府违法会遭到严厉惩罚，政府就会敬畏和遵守法律。可谁来判定政府违法以及惩罚违法的政府呢？如果在政府里设立独立的司法部门和中立执法系统，不受制于执政者，法院就可以相对独立地判定政府的立法和行政是否违（宪）法，司法机构就可以随时随地将违法的政府官员“绳之以法”。 |
| |
| Judicial independence,
a means of restraining government power with government power!
Such a brilliant idea can be traced back to ancient Greece
2500 years ago and ancient Roman 2000 years back. But Britain
was the first to practice it as a genuine system. The United
States made the system more delicate. It first vested the
judicial review power in the Supreme Court, empowering the
Supreme Court to veto a legislature or executive resolution
according to the Constitution. Judicial independence embraces
three basic principles: (a) the principle of independence,
demanding the judicial branch is free from executive interference
and (b) the principle of neutrality. Judges are life professionals
free from interest group ifluences and (c) the principle of
upholding the basic law as of supreme importance. The basic
law is not subject to any change by elected or non-elected
executives at will. |
| |
| 司法独立，以政府权力来约束政府权力！这个出色的想法可以追溯到两千五百年前的古希腊以及两千年前的古罗马，但司法独立真正成为制度还要首推英国。美国把这种制度变得非常精致，首创最高法院的“司法复审”（judicial
review）权，给最高法院依宪法否决立法和行机构政决议的权力。司法独立包括三个基本原则。（1）独立原则。要求司法不受行政左右。（2）中立原则。法官是终身职，是一种专门职业，不受社会利益集团左右。（3）基本法至上原则。基本法不可由着民选或非民选的执政者任意改动。 |
| |
| When independent
and career law experts are empowered to judge the disputes
between the executive branch of the government and the people,
and between the government branches, the authority of law
will prevail over the power of the executives. And the executives
will be compelled to administer according to law. It would
be meaningless to discuss whether the laws are good or bad
without making the law more important than the executive’s
will, without implementing the principle of everybody being
equal before the law, and without the dignity of law and judicial
independence. Good laws do not necessarily lead to “good rule”
or the rule of law. Just take a glimpse into what is around,
and you will find the rule of man and bad rule everywhere
under good laws. |
| |
当独立和职业的法律专家来裁判政府与人民的争议以及政府部门之间的争议，法权就高于执政者的权力，执政者就会被迫依法行政。没有让法律高于执政者的意愿，没有法律面前人人平等的原则，没有法律的尊严和司法独立，谈法律的好坏是没有意义的。好的法律并不导致“善治”或法治。举目四望，良法下的人治和恶治遍地都是。
|
| |
| In our country,
it is not legislation, but rigid enforcement of laws that
is more important. Make the laws really “effective.” If the
executives are not fearful of judicial power, but predominate
over the law, even the best law will fail to stop a “bad rule.”
Separation of power and restriction of government power with
government power, that is the only way to compel government
officials to respect laws with awe day in and day out. In
a word, it is the rule of law, and not democracy that can
solve the main problem in China. But without “good” laws,
would the rule of law not turn out to be the rule of “bad
laws”? How could there be “good” laws without a democratic
system? |
| |
| 在我国，重要的事不是立法，而是严格执法，让法律真正“生效”。如果执政者不畏惧司法权，居于法律之上，再好的法律也不能阻止“恶治”。分权，用政府权力来限制政府权力，才能迫使政府官员每日每时都尊重和畏惧法律。概言之，解决中国的主要问题要靠法治化，不是民主化。然而，没有“好”法，法治岂非“恶法”治国？没有民主制怎么可能有“好”法？
|
| |
| III. “Good Laws”
and “Bad Laws” |
| |
| 三．“良法” 与“恶法” |
| |
| The code to demand
government to exercise power according to basic social ethics
is a “good” code. The code to vest the government with unrestricted
power is a “bad” code. |
| |
| 要求政府依照社会之基本道德准则来行使权力的规矩是“良”法；赋予政府不受约束之权力的规矩是“恶”法。 |
| |
| Law has a dual
purpose: order and justice. To be secure, the people allow
the government to grasp all means of violence so as to stop
the disorder characterized by the jungle law. Order is the
basis of civilization and government is the hallmark of it.
Once there is a government, people will find those in power
will naturally tend to infinitely expand their power and act
as they please. Power is a kind of enjoyment. Holding sway
over others is one of the sources of joy. An official within
the term of office may issue an order and change it instantly
in the name of order and act as he pleases. He may possibly
bully others by means of public power vested in him. If he
is not restricted, this possibility may easily turn out to
be a reality. Hence, a government, once established, may constitute
the gravest threat to social justice. If the government exercises
its power according to basic social ethics, the threat to
the people may be alleviated. Only when it is so that the
people can enjoy the proper order as a result of government
administration. Only in this way can there be any just order.
Order comes from governance. And a just order comes from governance
according to the social consensus on good and bad reached
through the ages. Hence the code to demand governance according
to basic social ethics must be a “good” code. A good code
demands that the government should penalize the wicked and
never punish the good. We refer to the basic social ethics
as the basic law, which is defined as a “good” code. Of course,
a good code may not necessarily lead to a good rule. Requiring
an official how to act is one thing. How he will actually
behave himself is quite another. A code does not mean the
rule of law. |
| |
| 法律有双重目的：秩序和正义。为了获得安全，人民让政府掌握所有的暴力手段，从而制止弱肉强食的无序状态。秩序是文明的基础，政府是文明的标志。一旦有了政府，人们发现掌握政府权力的人天然倾向于无限扩大自己的权力，为一己之便而为所欲为。权力是一种享受，支配他人是快乐的源泉之一。在任期内官员可能会以秩序的名义朝令夕改，随心所欲，用公权欺辱他人。若不受限制，这种可能很容易变成现实。因此，有了政府，政府便构成对社会正义的最严重威胁。如果政府依照社会之基本道德准则来行使权力，人民遭受的威胁就能缓解，才能享受政府管理带来的秩序，才有正义的秩序。秩序来自政府，正义的秩序来源于政府依照社会长期形成的善恶共识来行使权力。因此，要求政府依社会之基本道德准则来行使权力的规矩必然是“良”法。良法要求政府“惩恶”，不得“惩善”。我们把“社会之基本道德准则”称为“基本法”。从定义上讲，基本法就是“良”法。当然，“良法”不一定导致“善治”，要求官员怎样做和官员实际怎样做并不是一回事。法律并非法治。 |
| |
| Originally, the
basic law was the “code.” Therefore the code was bound to
be “good.” Without a bad code, a good code would be out of
the question. From the Roman era to the end of the Middle
Ages, laws were considered to be “justice;” hence, the term
“divine law” or “natural law.” In Latin, “law” and “justice”
were one and the same word. “Justice” was the universal ethical
norm at the time. In other words, “law” in the past was not
only a matter of form, but also had definite contents, i.e.,
the standards for social “justice.” Articulated in the Bible,
it was based on the Ten Commandments. This was the context
of the principle of law supremacy in the Middle Ages in Europe.
Law was fixed and existed as a matter of course. It survived
in the form of inheritance of traditions. Therefore it was
not necessary to make legislation, still less to follow any
procedure of legislation. Laws were discovered or promulgated
by law experts, but not “formulated.” The role of “legislatures”
was mainly confined to compiling and annotating the unwritten
conventions. Over a long period of time the British Parliament
was a “law-finding body.” (6) In such an era a bad code was
not recognized as the law. People revolted against the wicked
“law” on the most justified ground of its “law violation.” |
| |
| 原先，基本法就是“法律”。因此，法律当然是“良”法。没有“恶法”，也就无所谓“良法”。自罗马时代直至中世纪末期，人们认为法律就是“正义”，就是“神圣法”（divine
law）或称“自然法” (natural law)。拉丁文的“法律”与“正义”是同一个词。“正义”就是当时的普遍道德准则。换言之，“法律”在过去不仅是形式，而且有确定的内容，即关于社会“正义”的规范，表述在《圣经》之中，以“十戒”为基础。这是欧洲中世纪盛行“法律至上原则”的背景。法律是既定的，是天然存在的，以继承传统的形式生存，因此无需“立法”，更不需要立法程序。法律能被法律专家发现或宣布，但不能被“制定”。当时“立法机关”的作用主要局限于编注非成文的惯例。英国的议会长期就是个“发现法律”的机构（A
law-finding body）。 在这样的时代，“恶法”并不被承认为“法”。人们造恶“法”的反，最正当的理由乃是其“违法”。 |
| |
| The concept of
“bad law” came along with that of “legislation.” Social changes
led to important changes in political integrity outlook. For
example, tilling by farm slaves and hierarchy had all to be
abolished. Hence, a social revolution broke out on the European
continent. The French revolutionaries boasted of making a
“thorough” break with the society and substituted the old
concept of values with the new concept of “people’s sovereignty.”
From then on, the elected Parliament members were vested with
the “legislation power.” As a result, “laws” were no longer
a “discovery” of the judges, or a product of rational inference.
They were no longer connected with the contents. They developed
into only a form. The rulers could “formulate” them at will.
As the rule of law turned out to be PM rule, the three concepts
of law, legislation and rule evolved into a synonym. Laws
were “legislated” by the rulers, namely the “people’s deputies”
who live with us day in and day out. Legislation meant rule
and vice versa. If the “rule” was bad, the “law” enacted must
have been bad. When the great French Revolution landed where
it was after travelling a circle, facts proved that the rule
of people’s deputies was almost as bad as the sovereign rule.
The question of bad “legislation” began to bother us.
|
| |
| “恶法”是跟着“立法”概念一起出现的。社会的变迁导致政治道德观发生了重要的变化，如使用农奴耕作和等级社会都需要被废弃，所以欧洲大陆上发生了社会革命。法国的革命者自诩要和旧社会“彻底”决裂，以全新的法律价值观念取代旧观念，以“人民主权”取而代之。从此，被人民选举产生的代议者有了“立法权”。“法律”不复是法官“发现”的、合法推理的产物，不再与内容相关，仅仅是形式，可以由着执政者的性子“制定”。随着法治成了代议者的统治，法律、立法、统治，这三个概念就演变成了同义词。法律是生活在我们眼前的执政者“人民代表”给“立”出来的。立法就是统治，统治就是立法。若其“统治”不善，其所立之“法”当然不善。 |
| |
| While the basic
law was not democratically formulated, the basic social ethical
norm took shape in the long practice of human society. Some
countries, for example, Britain, have no written constitutions.
The grounds of law there were the previous judgements passed.
So the people there had nowhere to start off with if they
wanted to alter the judgments passed on previous cases constituting
the basic law spirit. Inheriting the Anglo-Saxon traditions,
the US Constitution could not be altered either. The only
option left was to add amendments to it. The US Constitution
is one of the most famous “good” laws in the world. In the
United States, the Constitution is looked upon as the Holy
Bible in the secular world. But just like the Holy Bible,
it is hard of to speak of the Constitution as a product of
democracy. It was discussed and approved by 55 self-styled
gentlemen in 1787, the 52nd year of Emperor Qianlong during
the Qing Dynasty. Only 37 of them voted for it and most of
them were owners of large manors using slaves to till their
land. Later the parliament of the 13 states approved the Constitution,
but no more than 2000 people took part in the deliberations
and voting. And perhaps those people were the only ones who
knew how they became the deputies. Although these two thousand
deputies died long time ago and had nothing to do with the
lives of the contemporaries, yet in the two centuries or more,
no people’s resolutions have ever been made about the Constitution.
Compared with the US Constitution, the Constitution of the
People’s Republic of China was formulated in a much more democratic
process. Even if we presume that the US Constitution was generated
democratically, yet the world had undergone a tremendous change.
How can a code “democratically” produced in the era of “Emperor
Qianlong” be considered a democratic means to standardize
the contemporaries in the 21st century? Nevertheless, the
US Constitution remains a “good law.” It is also common knowledge
where the current German Basic Law and the current Japanese
Constitution came from. It is also known where the Hong Basic
Law until 1997, i.e., the Royal Decree of the British Throne,
came from. If these basic laws were listed among the “good
laws,” then it was clear that democracy was not the main means
to generate them. The reasons why the US Constitution was
considered as a good law were that it had the following special
features: (a) those who enacted it were political philosophers
of the greatest vision in the world. (b) It embraced all social
basic ethical norms. (c) It was enacted according to law and
inherited the main contents of Britain’s judgment cases. (d)
Through strict check and balance mechanism it restricted government
power and actually rejected the power of PM to revise the
basic law at their free will. |
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| 当法国的大革命绕了一圈又回到原地，当事实证明人民代表的统治几与君主的统治同等恶劣，“立”恶法问题就开始困扰我们。
基本法不是民主制定的，社会的基本道德准则是人类社会的长期实践形成的。有的国家，如英国，没有成文的宪法，法律的依据就是以前的判例，人民无从改变构成以往判例的基本法精神。承继盎格鲁-撒克逊的传统，美国宪法也几乎无从改变，只能附加修正案。《美国宪法》是世界上著名的“良法”之一。在美国，《美国宪法》是俗世的《圣经》，但却如《圣经》一般，谈不上是民主的产物。《美国宪法》是乾隆52年（1787年）由美国55个自称“人民代表”的绅士讨论通过的，其中仅39人投了赞成票，多半还是使用奴隶耕作的大庄园主。后来十三个州的议会批准了该宪法，但参与讨论和投票的人总共不超过两千，那两千个代表的产生方式大约只有他们自己知道。虽然这两千人早已做古，和当代人的生活毫无干系，两百多年里却从未有过针对宪法的人民公决。比较《美国宪法》的产生，制定《中华人民共和国宪法》的过程要民主得多。即便美国宪法算是民主产生的，世事沧桑，以乾隆时代“民主”定的规矩来规范21世纪的今人能算民主？然而，《美国宪法》依然是“良法”。大家还知道而今的《德国基本法》和《日本宪法》从何而来，也清楚到97年为止的香港基本法《英王制诰》从何而来。如果上述基本法属“良法”之列，民主显然不是产生这些法律的主要手段。《美国宪法》之所以成为良法，乃是因为其四大特点。（1）制定这部基本法的人属世界上最有见识的政治哲学家。（2）包含了社会的基本道德准则。（3）是依法立法，继承了英国判例法的主要内容。（4）通过严密的制衡机制限制了政府权力，实际上拒绝了由议员任意修改基本法的权力。
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| A code to vest
the government with unrestricted power is a “bad” code. Like
the rule of the sovereign, the rule of people’s deputies must
also be restricted. They should be compelled to enact according
to the basic law and to exercise their power of rule according
to basic social ethic norms. Like the sovereign, people’s
deputies are also human being who may abuse power, become
corrupt and bully weak groups and individuals. That is why
a good code requires people’s deputies to obey the fundamental
law and deny them absolute power. |
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| 赋予政府不受约束之权力的规矩是“恶”法。与君主一样，人民代表的统治权也必须受到约束，迫使他们依基本法立法，依基本法行政，依社会的基本道德准则行使统治权。人民代表与君主一样都是人，都会滥用权力，会腐败，会欺负弱势的群体和个人。因此“良法”要求人民代表必须服从基本法，不可享有绝对权力。 |
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| Lee Kuang Yew once
thought of giving somewhat greater weight to the adult votes
than to the votes from the young. But the practice was considered
as undemocratic. Democracy cannot possibly reject the system
of one voter one vote. But the US Constitution stipulates
the one-voter-one-vote system shall not be practiced in the
Senate elections. At present, one vote among the Alaskans
and Wyoming residents is roughly equivalent to 48 and 68 votes
among the Californians respectively. Nor is the one-voter-one-vote
system is practiced in presidential elections. The president
is indirectly elected with the state as a unit for vote counting.
The number of votes in each state college is the sum total
of the Federal Senators and House Representatives. The winner
gets the sum total and the loser will get zero votes, known
as the zero-all system. So the candidate president who gets
the majority vote may lose to the one who gets the minority
vote. Such a constitutional stipulation is much more undemocratic
than the idea of Lee Kuang Yew. It aims at nothing but to
restrict the power of people’s deputies. The Chief Judge of
the US Supreme Court is not elected. But the judges of the
Supreme Court alone are vested with the power of interpreting
the Constitution. And they are the only persons who are empowered
to ascertain whether the laws that have been signed by the
President to take effect after their adoption by the bicameral
US Congress are unconstitutional or not, and thus to be abolished
or not. The US President must pledge allegiance under the
supervision of the Chief Judge of the Supreme Court before
he can assume his office as president. Otherwise, it will
be of no use, no matter how many voters voted for him. The
system under the German “Basic Law” is even less democratic.
The upper house of Germany not only participates in approving
legislation, but also monopolizes the power to make legislation
proposals. But the upper house is not democratically elected,
but composed of the technocrats appointed by the various state
governments. |
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| 李光耀曾一度设想让成年人票比年轻人票分量重一点点，但大家认为不民主，民主不能拒绝一人一票。《美国宪法》却规定，参议院选举不实行一人一票制。目前，阿拉斯加居民的一票相当于一个加利福尼亚州居民的48票，怀俄明居民的一票等于加州居民的68票。总统选举也不实行一人一票制。总统以州为计票单位间接选出，各州选举人团的票数是各州联邦参议员和众议员之和，而且赢家通吃，不再计算输家的选票。因此，得大众票多的总统候选人可能输给得票少的。这种宪法规定比李光耀的设想不民主得多，目的就是限制人民代表的权力。美国最高法院的大法官不是民选的，但只有最高法院的法官有权解释宪法，还有权判定美国国会两院通过并经总统签署生效的法律违宪作废。美国总统须在最高法院大法官的监督下宣誓忠于宪法方能就职，否则多少人选他也无用。德国《基本法》规定的制度比美国制度的民主程度还低。德国的上院不仅参与立法批准，还垄断立法建议权。但上院不实行民选，而是由各州政府委派的技术官僚组成。
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| If all power were
really to belong to the people, this would be tantamount to
pursuing the jungle law in the whole society. The realistic
all power to the people approach could be only all power to
the elected Parliament, and delegate all the legislation,
administrative and judicial power to the hundreds of people’s
deputies. When the immediate interests of the deputies become
the upright basis for legislation, the basic social ethical
norms established over centuries would no longer be anything
important. Law is nothing but the pronoun for group and individual
interests at interim. All power to the Parliament and all
power to the sovereign are essentially the same. The demarcation
line between majority and minority autocracies is very vague.
It is a minority of career politicians that manipulate the
majority. The majority rule, the minority rule or the one-man
rule, is the rule of man all the same. The rule of man in
different categories is easily mutable. It is a commonplace
to cycle from democracy to autocracy. The French Revolution
boiled down to another launch of such a cycle in modern history.
The most thoroughgoing democracy is the starting point of
autocracy. On the eve of the 80th anniversary of the founding
of the Communist Party of China (CPC), there was a very terse
press passage that gave an official interpretation of the
Chinese system. I would like to quote it here to show how
close the rule of people’s deputies is to the rule of political
party: |
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| 若真的实行“一切权力归人民”，无异于让社会实行弱肉强食。现实的“一切权力归人民”只能是一切权力归民选的议会，让立法，行政，司法等权力都归了那几百个人民代表。当代表们的眼前利益成了光明正大的立法根据，千百年来形成的“社会基本道德准则”就不复是重要的事情了，法律就成了集团和个人临时利益的代名词。一切权力归议会和一切权力归君王没有本质的区别。多数专制与少数专制的界限非常模糊，操纵多数是少数政客的职业。多数人治，少数人治，一人之治，都是人治。不同类型的人治转化起来很容易，民主与专制的循环乃是寻常之事，法国革命不过是在近代重开了这个循环而已。最彻底的民主就是回归专制的起点。在中国共产党诞生80周年纪念日的前夕，报上载有一段对我国制度的官版解释，非常精炼。引用在此，说明“人代之治”与“党治”多么接近。 |
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| “The principle
of separation of power is no democratic principle. It is rather
the elite politics vs. popular politics. China does not practice
the principle of power separation because the people’s democracy
we practice is extensive and thoroughgoing. All power to the
people and all state power must be exercised in a unified
manner by the people’s congress as the people’s parliament,
and must never be shared by any other organs. The people’s
congress as the people’s parliament is the organ of state
power. All other state organs, judicial organs and inspection
organs are generated by the people’s congress and are responsible
to it, placed under its supervision. There is division of
work, but no separation of power among the various organs.”
(7) |
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| “分权原则并不是民主原则，而是以精英政治对抗民众政治。我国不实行分权原则，因为我们实行的人民民主追求广泛和彻底的民主。一切权力归人民，国家权力只能由作为人民代议机构的人民代表大会来统一行使，决不能由其他机构分享。作为人民代议机构的人民代表大会是国家的权力机关，其他国家机关、审判机关、检查机关都由人民代表大会产生，对它负责，受它监督。各机构之间实行分工不分权。” |
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| Lee Teng-hui made
a speech in Cornell University entitled “The desire of the
people is always cherished in my heart.” The speech was well
received in Taiwan. On second thought, “The desire of the
people is always cherished in my heart” implies both democracy
and autocracy. Unlike democracy, the rule of law demands checks
and balance of power and places no trust in anybody’s “heart.”
Hence, it is the deadly enemy of autocracy. Many fascists
came to power through fair and democratic elections. The most
important signal of their rise was to stop enforcing the constitution
in the name of “people’s desire.” |
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| 李登辉在康奈尔大学做过一次演讲，题目是“民之所欲，长在我心”，在台湾颇得好评。仔细想想，“民之所欲，长在我心”既有民主意味，又有专制含义。与民主不同，法治要求分权制衡，不相信任何人的“心”，所以是专制的死敌。法西斯主义者多在公平的民主选举中上台，他们上台的最重要表征就是以“民之所欲”的名义停止执行宪法。 |
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| “Legislation” is
the source of wicked laws enacted. The code for the rulers
to vest the rulers with infinite power is a wicked code. In
modern times, legislation, law and rule tend to merge into
one integrated whole, Appropriate legislation principles have
become crucial to a “good rule.” From then on, the government
structure will be the legislation principles and vice versa.
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| “立法”是立“恶法”的源泉。执政者赋予自己无限的权力，这种规矩就是“恶法”。近代以来，立法、法律、统治逐渐合为一体，恰当的立法原则就成了“善治”的关键。从此，政府体制就是立法原则，立法原则就是政府体制。 |
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| IV. Polemics on
Legislation Principles and the Mixed System |
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| 四．立法原则之争与混合制 |
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| While a good law
is formed naturally, a bad law is “legislated.” When law is
formulated by those around us, legislation, law and rule will
become a trinity. A good law will become a good rule. The
good rule and legislation principles will be bound up together
and closely connected with government structure. In other
words, a good rule depended on a good government structure,
or appropriate government system or institutions. The basic
legislation principles are divided into two categories: one
is the means to prevent government monopoly of power, stressing
the rule of law with check and balance of power; the other
is the means to manifest the people’s wishes and interests
through administration, stressing parliamentary democracy
with power vested in people’s deputies. The check and balance
of power through power separation guarantees the rulers follow
the basic social ethical norms while the parliamentary system
guarantees the immediate group interests. A government structure
that applies both of these two principles in a mixed manner
is a mixed government structure or system. |
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| “良法”是自然形成的，“恶法”是“立”出来的。当法律由眼前的那些人来制定，立法、法律、统治三位一体，良法问题就转化为“善治”问题。“善治”与立法原则连在了一起，与政府体制紧密相关。换言之，“善治”取决于“善制”，即恰当的政府制度。基本的立法原则分成两类：一是防止政府专权的手段，即强调分权制衡的法治；二是行政体现人民意愿和利益的手段，即强调人民代表权力的代议制民主。分权制衡保障执政者遵循社会基本道德准则；代议制保障集团的即时利益。混合使用两类原则的政府体制就是混合制。 |
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| Even under a mixed
system the basic function of law is to stop the government
from acting according to its free will. The basis of a good
law remains the basic social ethical norms shaped over a long
period of time. A system that tolerates the sovereign or people’s
deputies to administer at will is a bad system. A system that
can compel the government to obey the basic law is a good
system. |
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| 即便是混合制，法的基本功能依然是制止政府肆意妄为，“良法”的基础依然是社会长期形成的基本道德准则。容许君主或人民代表自由行政的制度是“恶制”，能够迫使政府服从基本法的制度是“良制”。 |
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| As far as the core
principle is concerned, basic social ethical norms are generally
speaking everlasting. Therefore the check and balance of power
is basic to a good system. It guarantees the enforcement of
the basic law. But in the long course of historical development
some ethical principles may change. That is to say, the ethical
norms may vary according to place and time. The Ten Commandments
in the Holy Bible were once the pillar of Western law and
law authority. The first four of the Ten Commandments were
the means to guarantee the remaining six Commandments, while
the other six Commandments were the substantial basic law.
Three of the six Commandments were the core, i.e., Thou shall
not kill; Thou shall not steal and Thou shall not cheat. The
other three Commandments were (a) Thou shall support thy parents;
(b) Thou shall not commit adultery; and (c) Thou shall not
infringe on others’ property. In the developed countries of
today, these three latter Commandments are much discounted.
There are even greater changes in some more specific ethical
norms, such as the viewpoints on hierarchy society and the
slavery system. Had the black slavery system been abolished
two centuries ago, there would not have been the United States
altogether? The civil war triggered by the slavery abolition
struggle fifty years later brought the United States to the
brink of “abolition.” It was after another one hundred years
that the United States established the black-white equality
social ethical norms through large-scale civil rights struggle.
Giving consideration to the immediate interests of different
groups through parliamentary democracy may embody the change
of basic ethical norms resulting from social changes and embody
the different understandings of the public about the basic
law on different specific issues and in different periods
of time. But the prerequisite was still not to tolerate the
substitution of immediate group interests for universal social
justice. Otherwise power politics pure and simple would result.
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| 就核心原则而言，社会基本道德准则大体上是永恒的。因此，“良制”的根本在于分权制衡，保障基本法得以实现。但在漫长的历史长河中，有些道德原则会出现变化，也就是说道德准则因时因地有所不同。《圣经》中的“十戒”曾是西方法律和法律权威的支柱。十戒的前四戒讲保障后六戒的手段，后六戒是实质性的“基本法”。六戒有三戒是核心，即不得杀人、偷窃、和欺骗。另外三戒是，必须赡养父母，不得奸淫，不得侵犯他人的财产。在今天发达的“福利社会”，这后三戒要打些折扣了。更具体一些的道德准则变化更大些，如对等级社会和奴隶制的看法。若两百年前废除黑奴制，这世界上就根本不会有“美国”。五十年后的废奴之议引发了内战，差点把美国给“废”了。又过了一百年，经历了大规模的民权抗争，美国才确立了黑白平等的社会道德准则。通过议会民主来照顾集团的即时利益可以体现社会变迁带来的道德准则变化，体现不同时期和在不同的具体问题上公众对基本法的不同理解。但前提依然是不能让即时利益取代社会的普遍正义，否则就是纯粹的强权政治了。 |
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| Since laws were
fixed, they had to be formulated. To maintain the relations
between laws and justice, there had been a struggle between
two concepts of legislation principles. Some people held that
there would not be bad laws if the majority of the people
were to formulate laws because the people would not harm their
own interests. This concept was in support of the principle
of “people’s sovereignty.” It embodied radicalism and tended
to be revolutionary. Some people, however, held that the basic
law originated from the basic ethical norms among |
