軟法與常態化的國家治理

Soft Law and the Normalized State Governance

法學主流理論觀察法律都從法與道德的關係入手，從而用規範應然來識別法律。然而，實然與應然之外，尚有法規範與法規範的實現這一重要的法學教義。自羅豪才教授將軟法概念引入中國之後，軟法治理已經成為我國法治實踐的重要組成部分。然而，仔細觀察學界對軟法的定義，有兩點含混之處亟需澄清，一是混淆了法規範的效力與約束力，二是未能區分出法律的常規性與強制性。本文認為軟法的核心特徵在於常規性，軟法是規範性與常規性的辯證結合。這種辨證關係體現在，規範性處於流變之中，在新舊規範性轉換過程中，始終有一個常規性維度，這一維度對於國家對內和對外治理都具有重要的理論意義。

The main stream of legal theory has always taken the relationship between law and morality as the point of departure to observe laws, and has accordingly used norm or ought to define laws. However, beside is and ought, there is another significant doctrine in legal study, which is about the reality. of legal norms and the realization of legal norms. Since Professor Luo Haocai addressed the concept of soft law in China, the rule of soft law has already become a crucial part of our nation's legal practice. Nevertheless, with a careful investigation on definitions of soft law in major academic works, two ambiguities emerge and need clarifications. These two ambiguities are: (1) confusing the validity of law and the binding effect of law, and (2) failure on distinguishing the normality of law and the coerciveness of law. This article argues that the core feature of soft law is normality, and soft law is the dialectical combination of normativity and normality. This dialectical relationship is shown in where normativity is undergoing changes, which means the old normativity is transferring into new normativity, and there is always a dimension of normality in this process. This dimension of normality has a theoretical significance to a state's governance in domestic level and international level.