“良法”与“善治”何以同样重要———国际法治标准的审思

有学者从法学理论的角度进行研究,认为法治应当追求一种形式上的价值,而不适于考虑实体要求。虽然在一些国家范围内法治可以做这样的理解,但宏观来看,法治并不应仅限于形式领域,更应当有正义的追求,“法律乃公正与善良之艺术”|而就国际法自身而言,国际法体系尚处于初级的、不成熟的法律状态,不适于仅仅考虑形式,而必须同时强调良法和善治。因国际法不成体系,故追求形式法治在相当长时间内是不可能完成的任务|因国际法的程序不足,故树立形式法治也近于无本之木|国际法的二元体系使缺乏实体法价值的形式法治容易误入歧途。因而,在相当长的历史时期内,对国际法治的倡导应当将良法和善治结合在一起讨论。

Why Sound Law and Good Governance Are Equally Important : The Criteria of International Rule of Law Revisited

The term international rule of law is frequently used not just by scholars throughout the world,but also by many government officials and international organizations . However,the exact meaning of this term is far from clear .Controversies exist not only in whether the status of rule of law is desirable and possible in the international arena,but also in whether the main elements of international rule of law is simply the form of the legal process,or,substance of law also included .To put this in another word :do we wish to have international rule of law which emphasizes only on good governance,or both sound law and good governance ? Such a controversy stems from the debates in the legal philosophy on what should be included in the term″rule of law .″Since Aristotle,the first expounder on rule of law in human history,the term has long been accepted as requirements on sound law and good governance .And the wide spread discussion on the rule of law by Albert Dicey provided a more detailed factor on both sides .However,with the impact of legal positivist,legal philosophers like Joseph Raz takes the position that the rule of law should be only conceived as a set of requirements on the form and process of law,but not an overall requirements on the social morality of law per se as well as the operation of law .The traditional view is regarded as a thick understanding on the rule of law,and the new view is regarded as a thin understanding . The author is in the position that international rule of law should be thick instead of thin . This position is mainly based on the general conception that the rule of law should not necessarily be limited in form and process of law .Viewing form the history of the rule of law,the practice does not really show the progress from thick meaning to thin,but rather from thin meaning to thick .The thin understanding for the rule of law in the history of Europe resulted in disastrous consequences during the Nazi period,and resulted in the revitalization of natural law school in legal philosophy . Modern experiences in many states also proved that sound law and good governance link together closely,it is very hard to enforce a law which is not good in moral sense or technical sense,and strict application of law itself could not be accepted as the rule of law if the legal rules are not reasonable . Further,the author argues that,even in some highly developed legal territory in the Western society the rule of law may be understood in the thin way,it could not be the case for all states in the world,nor for the international community .The main reason for this argument is that the social values in law have been generally agreed by the Western society with the evolution of history as well as a common background of religion .The tension between fairness and efficiency,between human liberty and social order,is quite obvious in many societies,especially transitional societies .Without a perfection of law in its moral concern,it is not possible that the society may realize the rule of law in its true sense . The international society as a common consensus is a primitive society,and therefore,international law is in a primitive stage .The first hindrance we meet in international rule of law is the fragmentation of international law .Since there is no organization and normal hierarchy in international relations,the competence and coverage of international institutions may conflict in many ways,and consequently conflict in social values,as free trade and protection of environment,financial innovation and financial security . Hence,the primary concern of international society is to reach more consensuses on social values and make more good laws to reduce the conflict of the rules .Another thing in consideration is that enforcement measures of international law and international judiciary are quite underdeveloped,as not all international institutions are equipped with procedural facilities . Most international legal rules are merely ethics and codes for activities in international affairs .If we stress the formal requirements in international rule of law only,we will have to ignore many such rules and thus neglect the progress in international law in many aspects .Moreover,there has been a tension between sovereignty of states and dignity of individuals as the core value of international law and international society for a long time,such issue is reflected in the debate in″humanitarian intervention″or the newly emerging″responsibility to protect″as well as the contention on the negotiation in the WTO with different views of industrialized members and developing members,and this reality calls for a settlement of substantial controversy first . In conclusion,we may say that in the international society formal rule of law cannot be realized without the development of substances embodied in the rules .Good governance and sound law are the two sides of one coin,could not be virtually divided,and are equally significant .