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It’s a paradox, however, the theories towards an ideal or ideals seem have more historical function. The development of the western legal system is the same process as those ideals come into real. As it is, the force of those concepts, which the theories towards an ideal or ideals are based on, comes from metaphysics no longer, but from the reality mixed with those ideals. And the theories based on history or reality, for the latter are influenced by those concepts, cannot refuse the same influence. Therefore, the two kinds of theories must be tending to converge.
From the position of hermeneutics, in spite of the theories based on history or reality, or towards an ideal or ideals, the theorists must have prejudice. This prejudice expects some ideal. At this level, the distinction of the two kinds of theories only means ideals implicit or explicit. Notwithstanding it, those ideals may be in ⑴the state, for its stability or development,⑵the individual, for its liberty or development. The union of the two standpoints is essential for the legal ideals to come into real. How did the two standpoints be united?
⒉ Requests from Ethics and Economics
Every social science has influence to the realization of legal ideals, esp. ethics and economics, for social ideals are ultimately rooted in ethics, and the feasibility of their realization would get more supports from economics than others.
From Aristotle, Cant at the middle, to Rawls, ethics has been made essentially different. For Aristotle, the function of justice is laid in the stability of the state, therefore slavery is reasonable by nature.5 To Cant, the spirit of ethics is: be a man of liberty, and respect other’s liberty at The same time.6 As for Rawls, liberty is prior to anything else, and the function of the justice as fairness is laid in maintaining the constitutional democracy.7 Obviously, ethics has turned from the societal stability to individual liberty by Cant at the turn point. The advocacy that takes a man as its end not means by Cant should be indisputable.
On contrary with ethics that takes a man as its end, however, the economics, which studies the efficient disposition of resources, cannot but take men as means for the economical development. Smith once emphasized the function of the market as a hand unseen, where men were the agents of the disposition. Today’s economics has already take men as the principal resource among others; therefore men have lost their qualification for the agents of the disposition. Once men become the objects of the disposition of resources, it is impossible for traditional economics to answer how to dispose resources efficiently, because of the complications of human being and the unpredictable quality of the creation. And so, the subjects of the studies in economy would inevitably turn from the economical activities will exchange their roles----not mathematics help political economics, but the reverse,8 and in his latter life studied constitutionalism. The marginal conditions of the economical activities are in fact the legal system; therefore the legal system has become the agent of the disposition of resources. To reach the efficient disposition of resources, however, it is necessary to provide individual with maximal freedom, for there is a direct ratio between men as resources with their freedom actually obtained.
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