On The Rationality Of The Rule Of Law

The rationality of ruling by law is a cross-subject issue relating to the field of jurisprudence, ethics and so on. In the history of the development of thoughts of law home and abroad, jurists and ethicists from different sects in different periods have different explanations for the rationality of ruling by law. While this study considers that ethics of contract, coming into being on the basis of commodity economy and embodied through concluding, abiding by or breaking a contract between persons involved, confirms the virtue requirement of keeping one's promise when conclude a contract, being credit when abide by a contract and being punished when break a contract between different persons involved with different interests and embodies the value orientation of balance between duties and rights, interests and burden in exchanging commodities, which makes it applicable extensively and acceptable to most extents. Social contract lies in resorting to the rationality of value and procedure and artfully achieving the conversion from the rationality of nature to that of ruling by law and the connection between the ruling by law in economic activities and that in political activities through elucidating the mechanism of social contract, which injects spirits of ethics to the birth and the development of the movement of democratic constitutionalism. Although social contract appeal to subjective logistic deduction and has its historical limitations inevitably, it is so far still the public ethical foundation for the establishment of order of ruling by law in modern times. Whereas our archaic country was building the country by agriculture, there is short of spirts of law adapted to commodity economy and democratic politics and so few rules of rights protecting and power restraining that private rights can not be well protected and public power can not be effectivelyrestricted in realities. It's necessary for us to advocate ethics of contract and promote ruling our country by law in such a civil society and political country. The whole dissertation is divided into five parts.Part I: Laying special emphasis on study and explanation of the conception of contract in China and Western's traditional culture. Through the study, it points out that the conception of contract in China's traditional culture is limited to the instrumental rationality and can neither produce powerful culture and value system, nor be evenly matched with the culture of rules of etiquette and law with predominant role. The conception of contract in Western's traditional culture was deeply rooted in considerably developed commodity economy, forming an alliance with politics, law, religion and morality, and gradually formed comprehensive cultural system covering all the fields, which provides powerful cultural support for the transition of Western's social structure and the development of ruling by law.Part II: Laying special emphasis on social contract's culture background and the foundation of theory, the article points that social contract have the internal connection among ration, justice, humanness and the rule of law, and it has an unique status in the history of the rule of law.Part III: Tracing back to the birth and development of social contract in the history of thought of Western law, it points out that as a kind of view of political law, from its form, social contract is the extension and application by ethics of contract in social and political life, but in the essence it is the ethical proof for the rationality of ruling by law. The historical contribution of the classical social contract represented by modern enlightenment thinkers lies in resorting to the rationality of value and procedure and artfully achieving the conversion from the rationality of nature to that of ruling by law and the connection between the ruling by law in economic activities and that in political activities through elucidatingthe mechanism of social contract, which laid theory foundation for the development of the movement of democracy and ruling by law in modern times. The new social contract represented by Rawls resorts to rationality of procedure, pursuing a impartial and justice social structure, which symbolizes the modern turn of social contract.Part IV: Mainly discusses the status and function of ethics of contract during the process of self-governing of private rights in civil society and points out that as a basic principle of ruling by law, free contract embodies ethics value orientation in civil society. In modern times, though the traditional free contract is restricted to some extent, virtually, it embodies the self-rectification and progress of the ethics value orientation in civil society. Since there was extreme short of ethics of contract adapted to commodity economy in Chinese history, it is ethical choice to advocate the spirit of contract in the historical conditions where modern China's civil society has take initiative shape.Part V: On the basis of analyzing the status and function of ethics of contract during the process of ruling by law in political countries, it points out that the spirit of conformity between rights and duties and moral requirement contained in ethics of contract on one side legally prove the political countries' birth and on the other side provide a moral basis for balancing rights and power, standardizing and restricting public power.Whereas lack of culture of contract which accommodates with commodity economy and democracy politics, we are necessary to absorb reasonable elements from social contract to enrich and abundance ethics of the rule of law of social democracy in the development of the ruling of citizen society and politics country.