|
Here we can see the similar request for freedom from ethics and economics, despite the difference between them in taking a man as its end or means. So the request for legal system to take men as means from economics to dispose resources efficiently, in order to reach the aim of taking men as their ends from ethics, is internal consistent in method, therefore can be met reasonably. According to this, jurisprudence must open to ethics, economics, and other social sciences. The so-called imperialism of economics reflects only the conservativeness of the jurisprudence.9
⒊ The contention between civil and public law
The request for liberty, which comes both from ethics and economics, presents itself as that the legality becomes the agent of the disposition of resources to reach the ethical aim of individuals. There is a key problem, however, for legality to dispose resources efficiently, that is about the resourcefulness of men, which is closely relative to knowledge, in anther word, relative to the sciences as whole(the intermediary factor is education). Compared with ethics, the relatively younger economics and its request for liberty are all the results of science and culture as they reached a certain level. The mutual reaction between liberty and knowledge under legality as the disposition of resources decided ultimately the alteration of society from political state to civil society and the correspondent change of legality from autocracy to the rule of law. This development of legality, from economics, means the augmentation of its capability of resource disposition, and from jurisprudence, must lead to the contention between civil and public law.
The distinction of civil and public law is a creation of Roman, where political state and civil society were in conflict. As to the middle age, civil society dissolved into the political state, and civil law was annihilated by public law. In modern time, as the political state has been merging into civil society, civil and public law are in balance in effectiveness.10 For whether they are in balance in legal reasoning, we must take into account the following problem. ⑴That which is connected with the pubic law is the sovereignty, and the civil law the individual right; the former is no less metaphysical than the latter, therefore the traditional distinction of civil and public law is not convincible. ⑵As above, the requests from ethics and economics are all freedom; if freedom is prior to anything else, the principal problem are freedom and its security, and the rest have to be connected with them. According to this, civil and pubic laws are about to be merging. A normative analysis of civil and penalty law in the same frame by Michael D•Bayles, demonstrates the trends.11 If we still assume the traditional distinction of civil and public law in legal reasoning, it seems the civil law that will dissolve the public law, for the concept of liberty is more connected with individuals. The recent advocacy of human rights over sovereignty by the west, notwithstanding other considerations, will have to be related to this trend of jurisprudent development.
|
