法治原則包含民主嗎？一個當代理論的反省

Does the Principle of the Rule of Law Include Democracy? Reflections on Contemporary Theories

對於民主與法治之間的關係一直有不少爭論。 許多理論家否認法治原則必然包含民主。 我在本文檢討了這類理論的兩個版本，並嘗試對此議題提出新的思考。
海耶克在他的《自由的憲章》一書中，推崇美國的憲法實踐歷史經驗對法治理念做出了重大貢獻。我則在奴隸制的歷史背景下，特別是運用了Dred Scott v. Sandford判決，重新審視了這段歷史，並批評海耶克對這一貢獻的解釋。我認為，雖然海耶克所讚揚的成就表面上似乎推進了法治原則，但美國內戰前的法學是建立在認為黑人是劣等種族的共識之上。以防止濫用權力為主要目標的法治理念，竟然可以與奴隸制相容的看法，實在太不合理。
〈法律本身的優點〉是拉茲關於法治的最新理論作品。拉茲認為，法治是任何法律都該遵循的特有美德或理想，其目的是要避免專制政府。根據拉茲的界定，專制政府的特徵就是對支持權力使用的正當理由毫不關心。在此基礎上拉茲發展了他的新版法治理論。我對這一理論進行了詳細的探討，指出了一些不一致之處，並提出了三個附帶條件，即包容性、平等尊重和民主參與，我認為這三個條件是該理論必須包含的，即使拉茲本人可能會否認這點。我把這個概念觀稱為包容性和辯論性的法治概念觀，這種法治觀也要求實現民主。

There are a lot of debates about the relationship between democracy and the rule of law. Many prominent theorists denied that the principle of the rule of law necessarily implies democracy. In this article I review two versions of these theorizing and try to develop a new answer to this debate.
Using American constitutional jurisprudence from its founding era up to about 1930s as example, Hayek explains this historical experience in his book 'Constitution of Liberty' as a major contribution to the idea of the rule of law. Nevertheless, against the historical background of slavery and primarily using the landmark decision Dred Scott v. Sandford, I reexamine this history and criticize Hayek's interpretation of that contribution. I point out that, although the achievements Hayek praised seem to be advancing the principle of the rule of law a great deal, the antebellum jurisprudence was established upon the common understandings deeming the black people as inferior race. It is quite unconvincing that the idea of the rule of law which takes the prevention of abusing power as its primary goal could be compatible with the institution of slavery.
'The Law's Own Virtue' is Joseph Raz's most recent theorizing about the rule of law. The rule of law, Raz says, is a specific virtue or ideal that the law should conform to, though there is no agreement about what it is. Everyone agrees that the aim of the rule of law is to avoid arbitrary government. According to Raz, arbitrary government is the use of power that is indifferent to the proper reasons for which power should be used. With this conception Raz develops his new version of the theory of the rule of law. I explore this theory in detail, point out some inconsistency, and formulate three provisos, i.e., inclusiveness, equal respect, and democratic participation, which, I argue, must be entailed by this theory despite Raz may not accept that. I call this conception the inclusive and argumentative conception of the rule of law which also demands democracy to be actualized.