| In the current risk society,the autonomy of law and even the rule of law are facing new challenges.The society is constantly developing and changing.It is actually impossible to pursue the absolute certainty of the law,but it is possible to pursue the relative certainty of the law.The healthy operation of the whole society also requires relatively certain laws.The emergence and justification of the proposition of "the autonomy of law" is to accomplish this mission.By summarizing the modern legal concepts gradually developed and perfected since the 19 th century,it can be found that the connotation and extension of "the autonomy of law" have undergone many versions with different definitions.For example,the legal positivist version of the autonomy of law puts the issue of legal science in the first place,believing that the realization of the scientific and self-consistent nature of the system,the realization of the autonomy of law is the proper meaning,and focusing on formalist logical thinking,which is actually a manifestation of advocating human reason.The view of legal positivism reveals that the "rule of rules" is the unity of science and autonomy,and the "legal system" is the starting point of argumentation.However,this theory,which binds science and autonomy,has been criticized by non-legal positivism.The pursuit of the rule of law of non-legal positivism has a negative attitude towards the autonomy of law,which reflects the evolution process from the paradigm of formal law to the paradigm of substantive law,which can be divided into three aspects: first,the ambiguity and fluidity of the meaning of words,in order to explain the legal Words need to be related to the social scene at that time.This approach may over-socialize the law,and non-legal elements invade the frontier of legal knowledge.Second,the inevitable legal loopholes in the rule system.One point of view is that the system is closed,and legislators cannot formulate complete legal norms.Conceptual jurisprudence assumes a conceptual pyramid,that is,when there is a normative loophole,it will turn to the conceptual pyramid for help and derive norms from concepts.Therefore,legal concepts are the cornerstone of legal theory research.But this set of legal concept system was criticized by Jhering’s purpose jurisprudence,and the subsequent interest jurisprudence and evaluation jurisprudence occupied the mainstream position.The concept pyramid has gradually become a relic of the past.Another view is that the system is open.But how this open system communicates with non-legal factors has become the focus of controversy.The distinction between law and other social norms such as politics,economy and religion is an important condition for maintaining the autonomy of law.Finally,there are problems with the philosophical foundations on which the autonomy of law rests.For example,the school of ordinary languages influenced Hart’s theory,and Hart paid great attention to the preciseness of words in his discussion,and distinguished the "center and periphery" of words.This method of understanding the world of life through language is inherited from Wittgenstein’s philosophy in the later period,combining legal theory with "language games".The school of ordinary languages has also gradually declined in modern times,and it cannot support the challenges brought about by the high complexity of modern society.In order to solve the dilemma of the autonomy of law,Luhmann’s system theory provides a feasible path.From the perspective of systematic jurisprudence,the scientificity of the legal system and the autonomy of the law are unbound.The autonomy of law of the legal version of system theory advocates system autonomy.Autonomy is the internal operation of the center of the legal system,and the legal system is completely separated from the scientific system.The basis of legal autonomous operation is communication,and the structure composed of rules becomes the basis of communication operation.Under the operation of communication,the legal system stabilizes normative expectations and realizes the relative certainty of law.On the basis of the system/environment group distinction,the code/programme distinction is extended,which turns static legal rules into dynamic legal operations.But Luhmann’s theory has shortcomings.Luhmann believes that autonomy is either all or nothing,but there is a "semi-autonomous" social intermediate state in society.The basis of Luhmann’s idea of autonomy lies in the complexity and structure within the legal system,but the complexity is limited,and structure,as an extension of the context of meaning,must selectively lose or ignore a large amount of information in the whole society.Teubner further developed Luhmann’s theory and proposed a third way beyond formal rationality and substantive rationality,that is,reflective rationality,which is specifically divided into the reflective mechanism of normative rationality,the procedural ism of internal rationality,and the systemic rationality of systemic rationality,and the system-to-system balance of systematic rationality.Self-reflection will be carried out within the legal system,and other social subsystems in the environment will also reflect,building a dual-reflective rational framework.Therefore,the autonomy of law needs to re-understand and accept scientificity,and use the power of scientificity to continuously optimize and improve the internal legal system,so that the law fits the process of social evolution and becomes a prominent feature of the era of functional differentiation.As a result,the construction of a society ruled by law will have more sufficient theoretical resources and motivation to solve the problems of "sinicization of law" and "modernization of law". |
