个人独特性与法律普遍性之调适
胡玉鸿个人独特性与法律普遍性之调适
Reconciling the Uniqueness of Individual and the Universality of Law
期刊名称：《法学研究》
期刊年份：
作者：胡玉鸿
单位：苏州大学法学院
中文关键词：个人的独特性;法律的普遍性;法律个别化
英文关键词：uniqueness of individual;universality of law;individuation of law
中文摘要：
现代法律通过立法上的抽象化、典型化、身份化、角色化等技术确立了普遍性。但是，个人的独特性与法律的普遍性之间存在的冲突也昭然若揭：强调行为而忽略人的存在；注重平等而无视人的差异；突出客观而不考虑主观问题。这些都使得法律规则与真实的个人之间无法协调。为解决这一问题，法律应当保障个人私域空间的合理存在，保障个性自由；确定法律上的特殊弱者，为少数人提供特殊的法律保护；法律运作层面上，通过个别化的方式，根据人的独特性设定不同的法律规则和作出不同的法律裁决。
英文摘要：
The dilemmas of modern law are the contradictions and conflicts between the uniqueness of individual and the universality of law. For one thing, the uniqueness of individual is a fact and a kind of necessity. Natural talent, living environment and the capability of self-creation form the uniqueness of every individual which is different from others. For another, the existence of community, the law in quest of formal justice and the ideal nature of law, make law consider the common nature of man more than its uniqueness.Moreover, the unity of individual’s nature, the openness of self and the similarity of individual’s action ensure the public characters of law. Through abstraction, typification, identification and personalization of legislation, modern law finally establishes the universality of law. However, the conflicts between the uniqueness of individual and the universality of law are very obvious. Firstly, the universality of law focuses on man’s action and forgets his existence. In other words, the universality of law qualifies its regulating object on the action and neglects the subject who adopts the action. Secondly, the universality of law emphasizes equality and ignores differences of men, which does not consider the differences of capability, inner quality and so on among people at all. Thirdly, the universality of law stresses the objectivity and omits subjectivity. Emotion, desire, intention, purpose and so on are not the objects of law. Because of these conflicts, the tension between the legal rules and real individuals cannot be reconciled. In order to solve these dilemmas, the law must protect the private sphere of individual and the freedom of personality so that it can provide a favorite institutional environment for the forming of the uniqueness of individual. And then, the modern law must determine the weak in law and give them special protection. At last, through the way of individuation, the modern law prescribes different legal rules and makes different adjudications basing on the uniqueness of individual in legislative and executive levels. Accordingly, the abstraction and rigidity of legal rules can be minified properly.
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