A Study On The Concept Of Law From The Value Of Legality

The concept of law has been the central issue of legal philosophy. The endurance and importance of the problem lies in the normative justification of the value of legality, which indicates the reflexive construction of legal practice. The value of legality refers to the point or rational of legal practice. The contested interpretation about the value of legality has shaped different conceptions of law, and an eligible legal theory should justify a most attractive conception of legality from an internal point of view.In the context of the Positivism-Dworkin debate thirty years on, we can organize the study of the nature of law in terms of the value of legality, which includes efficiency, fairness and integrity. On the one hand, whether or not the source thesis of legal positivism could be sustainable is determined by the contested value; on the other hand, the accurate understanding of the value of legality needs to be clarified in accordance with the circumstances of legality. Thus firstly, according to the value of efficiency, the point of law consists in advancing action-guiding and social cooperation through predictability and rational planning. Efficiency morally justifies the source thesis. Secondly, according to the value of fairness, the point of law consists in resolving reasonable disagreements in modern society through fair procedure. However, the fairness argument from the majority rule is infeasible, because it prefers decisive procedure to deliberative procedure. The conception of reasoned deliberation leads to the failure of the source thesis. Finally, according to the value of integrity, the point of law requires the government to speak with one voice, to act in a principled and coherent manner, to integrate values into the justice principal of equal concern and respect.In fact, Legality as a value concept undoubtedly expresses the idea of the rule of law. The inquiry of the concept of law also directly answers the problem of the rule of law. Accordingly, efficiency, fairness and integrity respectively correspond to the formal, the procedural and the substantive conception of the rule of law. So, we can reflex the three values of legality in terms with rethinking the above three conceptions.Basing on the diagnosis of the plural complexity in modern society, we hold that the positivism and the formal conception of the rule of law, exclusively highlighting the sources and form of legality, can’t offer an adequate imagination of law. On the contrary, the procedural and substantive morality of the rule of law correctly faces to plural values and reasonable disagreements, so that procedural argument of reasons aiming at the justice principle is promised by the central nature of law. Of course, this image doesn’t discard the institutional sources and the formal merits of legality. We should remember that the institutional sources are the ground of principle reconstructing, and the authoritative issuances of law make procedural argument of reasons into reality. Thus, an adequate legal theory should integrate the formal morality, the procedural morality and the substantive morality into the concept of law. In a word, in the circumstance of legality of the plural complexity society, the point or value of law is to find a best common scheme of justice in name of the society, and the achievement of the common scheme can not separate with the intuitional sources and procedural argument of reasons. Only if we think of the three aspects of legality together, can we grasp the political idea of the rule of law, and the conceptual nature of law.