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The logical necessity of pubic law dissolving into civil law and the actual possibility of political state dissolving into civil society, are two sides of the same coin. The implicit and explicit ideals of jurisprudents, the stability or development of the society, and the liberty development of the individuals, get united in modern country. Taking a retrospective like to the history of theories, in spite of the great difference of ethics between Aristotle and Rawls, their theories of justice are all laid in maintaining society, and although economics always took its rudimentary form of political economics, 12 it perhaps runs towards legal economics later, and all that are for the reason that the meaning and value of freedom in society nave already varied.
⒋ New challenges
The development of jurisprudence has admitted the priority of liberty, which is a base the constitutional democracy has been founded on. The priority of liberty, however, has been confronted with two realistic challenges:⑴ since men are creatures of social circumstances and social relations are tending to be more complex, the principle of man’s self-autonomy must be tending to be lack in its reasonability; ⑵ the defects of the market usually lead to the demands of non-market intervention, in fact, the governmental interventions are tending to multiply.13 The two trends seem to discount the request for liberty from ethics and economics.
As an ideal, the ethical request to take men as their end and not means, should not be blasphemed. In this context, the theoretical problem connected with the first challenge is whether the legality as the agent of resources disposition can reach the ethical aim of men. It has been stated above, that the effectiveness of the legality as the agent of resources disposition depends on individual resourcefulness, and the latter also depends on the degree of men as themselves. According to this, the lack of the principle of self-autonomy in reasonability caused by the more complex of social relations only means the want of men to be themselves. How men reach themselves, however, is a matter not only concerning with jurisprudence, but with all sciences. If jurisprudence wants to assure that the ethical aim of men can be reached through the efficient disposition of resources by legality, it ought to refer to all science and be a study on the marginal conditions of men to be themselves now.
As for the governmental interventions with the market, they are generally in demand for pubic interests and hardly be a real challenge to the priority of liberty as soon as they operate under the law. It’s not easy, however, for public interests to be calculated, therefore the real challenge is a theoretical problem concerned. From economics, the legality becomes the agent of resources dispositions only for the difficult of the analysis of economical activities, then can legality replace economics to be an agent of the analysis? Further, the main way for legality to allocate resources is through individuals’ actions of agreement, here for the disagreements(breach of contract, violation of rights and crime), the verdicts in the courts also need calculation of social interests as well as the governmental interventions do. These calculations are ultimately analysis of legal reasoning. Whether they are feasible, needs to be proved, but they must inspire the return of utilitarianism. Thomas Morawetz’s study about positivism and new natural law’s studies under the same frame of utilitarianism can be taken as an example.14
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