As the basic strategy of governing the country in contemporary China, the rule of law has strict formalization. Studying the formal rationality of the rule of law is actually the process of studying the rule of law gradually moving towards rationality. The formal rationality of the rule of law is an objective rationality with factual nature, and it is a judgment of the causal relationship between different facts; The rule of law that conforms to formal rationality is called formal rule of law, which does not involve people's subjective likes and dislikes and subjective evaluation. Therefore, the formal rule of law can oppose authoritarian privileges; Formal rule of law is conducive to safeguarding substantive rights; Formal rule of law is conducive to ensuring judicial justice; Formal rule of law is not only the requirement of market economy, but also promotes the development of market economy in turn.

Keywords rationality of rule of law form

foreword

Governing the country according to law is the fundamental strategy of governing the country in China, and completely abandoning the rule of man and realizing the rule of law are the fundamental requirements of governing the country in modern countries. According to a more scientific and reasonable classification method, the rule of law can be divided into formal rule of law and substantive rule of law. Formal rule of law is a kind of rule of law that strictly requires the rationality of the legal system, while substantive rule of law is more reflected in the fact that law guarantees the substantive fairness and justice of society and people.

At present, there are many debates and researches on formal rule of law and substantive rule of law abroad. A general requirement is to realize substantive rule of law on the premise of formal rule of law. In contrast, there is insufficient research on this subject in China, and only a few monographs and papers discuss this issue.

This paper attempts to systematically analyze the existing materials, summarize the original scattered viewpoints and discussions, and try to put forward some new viewpoints.

The thesis is divided into four parts: first, the formal rationality and substantive rationality of law; Second, formal rationality and the evolution of western rule of law; Third, the formal rationality requirements of the rule of law; Fourthly, it emphasizes the significance of the rationality of the rule of law in China.

The first part discusses the formal rationality and substantive rationality of law, and analyzes some basic concepts of formal rule of law; The second part observes the development process of western rule of law from a historical perspective, and thus summarizes the general law of the development of rule of law, that is, the development of rule of law is the process of rationalization of legal forms. The third part discusses the formal rationality requirements of the rule of law. The fourth part expounds the significance of emphasizing the rationality of the rule of law in China based on the national conditions of China.

On the Formal Rationality of Rule of Law

I. Formal rationality and substantive rationality of law

Before discussing the formal rationality of the rule of law, it is necessary for us to distinguish and understand the formal rationality and substantive rationality of law.

(A) the formal rationality of the law

What is the formal rationality of law? To understand this problem, we must first clarify two concepts, that is, what is "form" and "rationality". Weber mainly uses the concept of "form" in two senses: first, it refers to dealing with specific problems according to abstract general legal rules, rather than dealing with specific situations; Secondly, it refers to the independence and self-perfection of the legal system, that is, the application of legal rules is not affected by substantive elements such as morality, religion, politics and the personal will of those in power, and emphasizes the autonomy of law. [1] Therefore, formalism means that the law emphasizes its external forms, such as generality and independence, without involving its internal value category. Rationality is mainly a concept of political sociology. Habermas believes that "rationality means recognition of a political system." [2] and this recognition is based on some socially recognized values. They either rely on legal rules, traditional beliefs, or the personality charm of rulers to maintain their rule over society. Therefore, rationality and legitimacy are the same concept, and the rule of rationality means that this rule is considered legitimate by society; At the same time, it also shows that rationality is mainly a concept of value, and rational things mean being recognized by people in value and emotion. [3] Therefore, formal rationality means that the law has universally applicable rules and uses the standards within the law to handle cases; At the same time, the generality and independence of the law have been recognized by the society and widely recognized by people.

Formal rational law is a kind of legal type based on ancient Roman law and promoted by the research of European theoretical school (that is, conceptual law) and developed with the rise of capitalism. It is also the legal expression of "rule of law" in modern capitalist society. According to Weber, the development of law has gone through different stages and has different forms of expression. Since modern times, the law in western society has experienced a rational process. Formalization and rationalization are the fundamental characteristics of modern capitalist law, and only this kind of law that adheres to formal rationality can adapt to and promote the development of market economy. This process of legal rationalization is also a process of legal form rationalization or formalism. [4]

Here we need to distinguish two concepts, namely "formalization" and "rationalization". Weber understood the concepts of rationalization and formalization in a similar sense. If the principles and rules of law are further refined and restricted, it means the increase of legal certainty and formality. It can be said that legal rationalization is the result of legal formalization movement. However, formalization and rationalization are also different. Formal law is not necessarily rational law. [5] In short, rationalization represents people's conscious technical control over the objective world, and formalization is the inevitable external manifestation of rationalization, but only by putting this formalization under the conscious control of human rationality can we maintain rationality, otherwise we can only go to the opposite side of rationality.

(B) the substantive rationality of the law

Substantial rationality is a concept opposite to formal rationality. The so-called "essence" means that society handles disputes according to emotional factors such as morality, politics and personal will, rather than dealing with social problems according to carefully designed fixed legal rules. [6] For the relationship between the two, substance and form, as relative concepts, of course, have a unified side, and laws with substantive rationality should also have certain legal forms, but "the difference between the legal types of substantive rationality and formal rationality can not be understood only from whether the laws are formalized (they may all have formal code forms), but also from their handling of the relationship between entities and forms." [7]

The types of laws with substantive rationality often do not distinguish between legal norms and moral and political norms in legislation, and the application of laws in justice often succumbs to the evaluation of substantive moral and political principles, so laws lack independence and certainty, and such laws are "substantive" as a whole. On the other hand, formal rational law insists on the relative independence of law, and tends to exclude the interference of substantive elements when legal norms are closely related to substantive morality and political principles. Regarding the relationship between the two, Weber's analysis is incisive: "Formal rationality has the nature of facts and is a judgment on the causal relationship between different facts; Substantial rationality has the nature of value, and it is the judgment of the logical relationship between different values. Formal rationality is mainly attributed to the computability of means and order, which is an objective rationality; Substantive rationality is a subjective rationality based on the value of purpose and result. " [8]

From Weber's exposition on formal rationality and substantive rationality, we can see that formal rationality has the following characteristics: First, objectivity, that is, the form of law is objective and fixed. The objectivity of legal form fundamentally ensures that the law itself has standards to follow, thus avoiding the arbitrary arbitrariness and interference of the country's paternalistic autocracy. The second is computability. The legal form has objective standards and will not change in a certain period of time, so people can predict the applicable law according to past experience. Finally, it is universal applicability. The formal rationality of law is not mixed with personal likes and dislikes, and applies to all groups and individuals impartially; The substantive rationality of law is based on the value of purpose and result, so it has a strong subjective color. It is impossible for an interest group to impose its own subjective standards on all different interest groups, so it is not as common as formal rationality.

Second, formal rationality and the evolution of western rule of law

(A) the development history of the rule of law in the West

The evolution of western rule of law is a process from formal rule of law to substantive rule of law, that is, from emphasizing the formal rationality of law to paying attention to the substantive justice and fairness that the rule of law can achieve. However, this trend does not mean that the western rule of law is already a substantive rule of law. In fact, formal rule of law is still the mainstream of western rule of law.

Looking back at history, we can clearly see the trajectory and general laws of the development of the rule of law.

/kloc-In the late 9th century, with the progress of western industrial civilization and the development of capitalism, some thoughtful scholars put forward their own views on the rule of law. Albert Venn Dicey of Britain first put forward the three principles of rule of law, thus taking the first step of modern rule of law. These three principles are: "No one will be punished and his person and property will not be infringed unless he explicitly violates the laws formulated by the general courts of the country in a usual and legal way;" No one is above the law, and all people, regardless of their status and conditions, must obey the general laws of the country and the jurisdiction of the general courts; Individual rights are determined by specific cases accepted by ordinary courts. " [9]

A careful analysis of Albert Venn Dicey's three principles shows that his first principle actually emphasizes the rule of law, that is, the law has authority; The second principle emphasizes equality before the law; The third principle is similar to the principle of judicial independence in modern legal system. Generally speaking, these three principles conform to the formal rationality of law and belong to the category of formal rule of law, but in fact he did not put forward the concept of substantive fairness and justice.

Since then, Raz has also put forward the viewpoint of formal rule of law and eight principles of rule of law: First, the law must be predictable, open and clear. This is the most fundamental principle. Second, the law must be relatively stable. Third, specific legal orders or administrative instructions must be formulated under the guidance of openness, stability, clarity and general rules. Fourth, judicial independence must be guaranteed. Fifth, we must abide by the principles of natural justice such as fair trial and justice. Sixth, the court should have the right to examine the actions of other government departments to determine whether they are in compliance with the law. Seventh, it is easier to go to court. Eighth, the discretion of law enforcement agencies is not allowed to distort the law. [10] here, although Raz realized that the general law may contain special provisions on religious or racial discrimination, and thus incorporated the special law into the principle of rule of law, he also stressed that the special law should be guided by the principles of the general law and ultimately safeguard the authority of the general law. Compared with Albert Venn Dicey, Raz's concept of formal rule of law is clearer and more mature, which basically covers the elements of modern formal rule of law, such as the law should be stable, clear and independent.

The rule of law has developed to modern times, and its content has been further developed. People not only demand the formal rule of law to safeguard individual freedom and oppose autocratic privilege, but also put forward a further requirement, that is, to eliminate social injustice and realize substantive justice by substantive rule of law. For example, Fuller not only put forward the external morality of law, that is, the substantive purpose and ideal of law, such as abstract justice and fairness, but also emphasized the internal morality of law, that is, the procedural principles or legal principles related to the formulation, interpretation and application of law. [1 1] In the book The Virtue of Law, Fuller divides the virtue of law into internal virtue and external virtue, and thinks that the rule of law is a part of the internal virtue of law. [12] In his view, a legal system with the spirit of the rule of law consists of eight elements: generality, publicity or openness, predictability, clarity, no inherent contradiction, conformity, stability and identity. [13] In fact, from Fuller's exposition, we can see that the so-called external morality of law is the requirement of substantive rule of law, while the internal morality of law points out the characteristics of formal rule of law.

In addition, Rawls' Theory of Social Justice and Dworkin's Theory of Rights actually transcend the formal rule of law and pursue the higher substantive justice goal of mankind [14] Rawls believes that, first of all, "the legal system is the mandatory order of public rules"; The same situation is handled in the same way, which limits the judicial discretion; "There is no crime without express law"; The law must have a clear meaning and definition; The trial must be fair and open. [15] This requirement emphasizes the external regularity of the rule of law. Secondly, in order to adjust behavior and obtain social cooperation necessary for justice, rules must have some characteristics consistent with the rule of law: what must be done means what can be done. [16] This actually requires the law to be reasonable in substantive value, which is equivalent to Fuller's "external morality of law".

(B) Contemporary Western debates on formal and substantive rule of law

With the development of formal rule of law theory, its limitations gradually appear in western capitalist countries. More scholars have criticized and questioned this. [17] These criticisms and doubts mainly focus on two points: one is the criticism and discussion on the legal certainty under the formal rule of law, and the other is the doubt on whether the formal rule of law can realize substantive justice.

Judging from the development track of western rule of law theory, the essence of the dispute between the form of rule of law and the substantive rationality is the dispute of legal certainty.

For example, scholars of conceptual law generally believe that the substantive value of law can be realized through democratic legislative procedures and strict judicial supervision, so they think that the law with formal rationality is deterministic.

However, some critical legal scholars have pointed out that the formal rational law is not as seamless as the conceptual law imagines, on the contrary, it is so full of holes that legal certainty can only become a fantasy of self-deception, [17] so the rationality of rules as the core of formal rule of law is doubtful.

Legal realism, on the other hand, through the analysis of the actual behavior in the process of applying legal rules, finds that paper rules have very limited constraints on those who apply them. Needless to say, paper rules themselves have many limitations, that is, they can be as perfect as the concept law claims, but they still cannot achieve certainty in the application of the law. This is because there are always legal applicants with unique personality, legal interpretation is always essential, and the process of fact finding is always unpredictable ... [18].

As for the question of whether the formal rule of law can realize substantive justice, it is more focused on the discussion of eliminating social poverty and protecting individuals' positive freedom.

But in fact, this controversy is due to the fact that the capitalist form of rule of law has developed to a relatively perfect level, and the benefits of formal rule of law are all over the society. People's eyes began to turn to its shortcomings, demanding further improvement of the rule of law, which not only requires formal equality and justice, but also requires the rule of law to reflect the justice of substantive value.

Third, the formal rationality requirements of the rule of law.

The formal rationality of the rule of law often has different requirements in the eyes of different scholars. After analysis and summary, the following aspects are considered to be the most important requirements of formal rule of law.

universality

A main idea of formal rule of law is the rule of law, that is, members of society generally abide by the law. The universality of law has two basic meanings: on the surface, in a certain country or region, the law should be common and effective, treat everyone equally, and it should not be dominated by personal emotional factors. Formal rule of law not only means that ordinary members of society should act according to law, but more importantly, state organs and their staff are no exception, making it a universal principle for participants in social relations to act according to law. Furthermore, the law of the rule of law must be universally applicable to members of society, and no political party, group, organization, institution or individual is allowed to escape from the law. Of course, the universality of law must be guaranteed by the concept of supremacy of law and strict procedures. In this sense, the universality of law contained in the rule of law is related to the unity and fairness of law; From a deeper perspective, universally observed laws should also have the basis of being universally respected, that is, the rationality of laws. It either has some kind of universal morality, so as to gain the internal foundation of being respected; Either it is associated with certain public power and shares the sanctity of power. [19] In this sense, the laws of a society ruled by law must conform to a more fundamental and effective universal norm that transcends national and ethnic boundaries. Therefore, the universality theory of law is often associated with a certain concept of social development, and law has the function of promoting social progress. [20]

(2) certainty

The certainty of formal rule of law means that the law stipulates a stable causal relationship between certain human behaviors and certain consequences. [2 1] What is determined by law will not be changed arbitrarily because of one person's events, so as to establish and maintain roughly certain expectations for the crowd, make the behavior of citizens and organizations predictable and continuous, facilitate people's interaction, and establish social relations that promote the interests of all parties.

(3) autonomy

When the rule of law has an independent nature, it breaks away from the value category of instrumentalism and rises to what human beings need to realize their own values. The autonomy of formal rule of law first requires the autonomy of law itself, that is, the separation of law and moral religion; Secondly, make judicial organs or groups of judges operate and exercise their power independently from the organization and mechanism; Finally, the legal profession is required to be undertaken by a special group of jurists and not controlled by other authoritative forces. The autonomy of the rule of law is reflected in two aspects: 1. Laws are made by democratically elected legislatures through democratic legislative procedures. Although there are various forms of power integration in the legislative mechanism, the laws of a society ruled by law are all produced through democratic means; 2. The judiciary operates independently and exercises its rights. In other words, the judiciary is not manipulated and influenced by administrative agencies and other political parties and groups. [22]

Fourth, emphasize the significance of the rationality of the rule of law in China.

(A) the inevitability of formal rule of law in contemporary China.

Since modern times, the general trend of social and political reform in China has been towards democracy and the rule of law, but this process has also experienced numerous bumps and setbacks. From the end of the Qing Dynasty, preparing for constitutionalism, opening parliament, establishing a trial government and implementing limited decentralization became a trick to ease domestic contradictions and deceive the people. From the Provisional Constitution of the Republic of China to its abolition, Yuan Shikai threw out the Constitution of Yuan Ji to deceive the people. From 1954, the constitution granted people a wide range of rights and freedoms, to the period when democracy and the legal system were trampled on and the constitution was shelved like waste paper. All these reflect the difficulty of realizing formal rule of law in China.

When many contemporary western thinkers and jurists put forward that substantive justice should be realized through substantive rule of law, China is faced with imperfect legal system, imperfect law enforcement and judicial mechanism, weak legal supervision, and difficult public power to govern. Therefore, the pursuit of substantive rule of law now is not only an extravagant hope, but also brings various disadvantages.

First of all, the substantive rule of law requires the use of moral principles as an important principle in legislation, law enforcement and justice. However, with the increasing diversification of social interests and values in China, the meanings of "morality" and "justice" are really difficult to determine. Different interest groups have different views on justice and benefit, which leads to their different requirements for morality.

Second, as Habermas said, "The implementation of welfare law in substantive law is intended to provide necessary material conditions for individuals, especially those in disadvantaged social positions, to exercise their rights and freedoms and safeguard their dignity, but the result is an infringement of private autonomy, an interference with personal freedom and an insult to personal dignity." [23] In China, the material and institutional conditions for the implementation of the welfare law are not yet available, and the blind implementation of the welfare law will undermine the equality construction in the legal form that has just begun.

Third, the substantive rule of law emphasizes the use of the principle of justice to intervene in legislative and judicial procedures. However, for contemporary China, this kind of intervention can only break legal autonomy and undermine legislative democracy and judicial neutrality when the formal rule of law is incomplete, the state power is not bound, and the professional quality of legal practitioners is not high. [24]

Finally, the implementation of substantive rule of law is bound to give administrative law enforcement organs and judicial institutions a wide range of discretion, which will easily lead to new arbitrariness in law enforcement and justice when law enforcement and judicial staff are not aware of the rule of law, have low quality and are not bound by strict procedures.

To sum up, in contemporary China, because the construction of the rule of law has just started, it is still restricted by many unfavorable factors. We can only develop the rule of law in an orderly way according to the general road of the development of the rule of law, but we can't catch up with the leap-forward development of the international trend and blindly introduce things that are not suitable for the national conditions.

(B) the significance of implementing formal rule of law in contemporary China.

Formal rule of law can oppose autocratic privilege. During the feudal autocratic monarchy, the rulers kept their words and the laws were made by people, which became a tool for some groups to obtain benefits. Moreover, the law is extremely unstable, and the abolition of legislation depends on one's preferences, and the people are at a loss, even at a loss. In contrast, in modern society ruled by law, universally applicable laws have replaced specially applicable laws, independent courts have replaced judicial institutions as political vassals, equal contract laws have replaced privileged identity laws, and people's legislation has replaced royal laws. In short, the formal rule of law has played an extremely important role in preventing monopoly and protecting people's rights.

Formal rule of law is not only the requirement of market economy, but also promotes the development of market economy in turn. General and universal laws are conducive to market participants' familiarity and mastery; Clear, stable and equal laws are conducive to ensuring efficiency; Independent judicial procedures are conducive to timely settlement of disputes and fair distribution of benefits. In a word, the formal rule of law is conducive to promoting market efficiency, safeguarding the rights of market subjects and ensuring the safety of transactions, which is of great significance in contemporary China.

Formal rule of law is conducive to safeguarding substantive rights. Formal rule of law pays attention to the procedural nature of law, and only by perfecting legal procedures can we ensure the strict implementation of substantive content. At present, China is only at the starting point of the road of rule of law, and should concentrate on the construction of formal rule of law. If we talk about the substantive rule of law now, it will undoubtedly go beyond the national conditions of China, which is an extravagant hope.

Formal rule of law is conducive to ensuring judicial justice. As far as the current judicial injustice in China is concerned, it is not substantive injustice, nor institutional injustice, but procedural injustice. [25] For a long time, there has been a value orientation in China's judicial activities and judicial behavior that focuses on substantive justice and ignores procedural justice. However, the substantive justice of result justice is the most difficult for people to evaluate and measure subjectively. Due to the differences in the legal cognitive ability of the evaluators and the contrast between subjective expectations and judicial results, different people will have different feelings about the same result. This procedural justice is of great significance to the definition and maintenance of judicial justice. In contrast, judicial formalism enables the legal system to operate like a skilled and well-structured machine, thus ensuring that individuals and groups gain relative freedom in this system and greatly improving the possibility of foreseeing the legal consequences of actions. Substantive injustice may only be the extinction of individual justice, while procedural injustice is the loss of institutional justice. [26 ]

conclusion

In contemporary China, because the rule of law has just started, the construction of the rule of law is still restricted by many unfavorable factors. We can only follow the general road of the development of the rule of law and develop the forms of the rule of law in turn, instead of blindly introducing things that are not suitable for the national conditions.

The construction of rule of law in China should start with formal rule of law, which requires: gradually improve the legislative system, especially the legislative procedure, so that legislation can be carried out in accordance with the requirements of formal rule of law; Gradually establish the status of judicial independence, so that the judicial organs can truly exercise their functions and powers independently and are not influenced by any other groups or individuals; Gradually restrain the overly broad administrative discretion of administrative organs and take a solid first step of formal rule of law.