摘要
法律系统的二值代码性特征,指的是整个法律系统的运作最终都服从和服务于个案裁判中对行为和诉求的合法性的裁断:一个行为或诉求要么是合法的,要么是不合法的,并不存在第三种可能性。它的内涵和重要性长期被法学理论所忽视。现代法律系统二值代码性特征是在现代社会偶联性的条件下才出现的,是现代社会经长期演化形成的成就。它使得现代法律系统像社会的免疫系统一样,增强了现代社会对冲突的敏感度和耐受力。它的内涵是,法律系统在内部建构出了一个合法与不合法相互转化的偶联决断空间。它具有非对称性、普遍性与专殊性结合的特征,也带来了法律自身的合法性悖论。这是现代法律系统的结构性特征,并由法律纲要在内部予以补充,从而建构起现代法律系统的运作封闭性和认知开放性。这使得现代法律系统能够在内容频繁变化的情况下,仍能发挥稳定规范性预期的功能。对现代法律系统运作的二值代码性特征的阐述和研究,进一步深化了对现代法律系统性质的认识。
One of the fundamental characteristics of the modern legal system is that it operates strictly through the schema of the lawfulness/unlawfulness binary code.This means that all operations in the legal system are subject to and at the service of the adjudication that an action or claim is either lawful or not and there is no third possibility.One of the most important conditions of the emergence of binary code is the contingency of modern society,which means neither necessary nor impossible.More and more people realize that it is impossible to completely eliminate disputes.By judging disputes,the modern legal system can recognize different types of dispute and memorize them,and then use judicial decisions to make new legal rules.Through this process,it enhances both the sensitivity and the tolerance of modern society to conflicts and,to this end,it develops the binary code inside itself.The modern legal system constructs an artificial space of contingency in which lawfulness and unlawfulness can transform into each other.The schema of the lawfulness/unlawfulness binary code is asymmetry,which means that almost everyone pursue lawfulness,but not unlawfulness.Through this schema,the legal system combines its generality and specificity,thereby making itself much more sensitive to and capable of working more efficiently with the issue of legality.One of the important consequences of the binary schema is the paradox of law,that is,the problem of legality of law.In modern society,the rapid change of the contents of legal norms should not undermine the status of legal norms.In the schema of binary code,the status of a legal norm has nothing to do with its content but everything to do with which side it stays.The binary code is the structural characteristic of modern law,which is supplemented by the legal program inside the legal system.Because of the relationship between the binary code and the program,the modern legal system constructs itself as an operationally closed but cognitively open autopoietic system.The description and explanation of the binary code of the modern legal system is very important.It gives a brand-new answer to the question of“What is law?”and can explain the separation of law and morality much clearly.What is more,it can also explain the separation of law from politics,religion,economics,art,etc.The modern legal system is different from the modern politic system,the modern economic system,the modern art system,and the modern religion system exactly because they have different binary codes.It is also of great significance for understanding the transformation of China’s legal system and society.The function of law is to guarantee the stability of expectations.The binary code of the modern legal system is developed to serve this function.China is becoming a super-scale complex society,so the binary code of the modern legal system is also very important for the Chinese society.
出处
《环球法律评论》
CSSCI
北大核心
2023年第4期56-72,共17页
Global Law Review
基金
2018年度国家社会科学基金项目“新时代超大规模陌生人社会治理中法治化问题研究”(18BFX016)的研究成果
作者简介
泮伟江,北京航空航天大学法学院教授。
