作者：祝正明

（三）法治的民意代表性

法律适用于所有使用文字的社会，法律本身是一种工具，可以为任何形态的社会与阶级所采用，并服务于完全不同的对象。

法律有各种各样不同的形式，有松弛的，有严谨的，有残缺不全的，有细密周到的。法律在人们心目中的地位也不同，有被严肃看待，得到充分尊重，为公众所自觉遵守的；有被藐视，随时都有很多人在违犯，遭到公众广泛唾弃。

法律的有效性取决于执法者的责任心和工作能力。但是，如果一个国家的某项法律被大多数人所轻视，违犯者甚众，执法者也是没有时间和精力将他们绳之以法的，只有少数撞在枪口上的倒霉蛋会成为这种法律的牺牲品。这种法律是没有生命力的，不需要多少年，就会自动退出社会舞台。相反，如果一项法律符合广大民众的普遍利益，得到民众的充分尊重，则可以维持几个世纪而基本不变。

服从别人制定出来的法律是一种奴役，而服从自己制定出来的法律，则是一种自由。

1. 立法的代表性

法律由谁制定，如何制定，是决定法律能代表谁的意志、为谁的利益服务的关键因素。

使法律符合民意的根本办法，就是直接由民众自己来制定法律，让人民成为法律的作者。只有这样，才能使道德成为法律，使法律代表道德，代表民情，使法律符合广大民众的利益，得到民众的充分尊重与自觉遵守。

民众是由一个千千万万人组成的群体，如何才能将他们的意志提炼出来形成法律？显然，在一个人口众多的社会，不可能所有的人都亲自参与制定所有的法律。此外，制定良好的法律必须具备专门的知识，未必普通百姓都具备，且公民往往也没有足够的时间和精力亲自去做。

但是，公民有能力识别在他们中间谁拥有这种充分的知识和能力，谁能代表他们的意志。他们可以推举自己的代表代替他们去做。因此，除了个别事关重大的法律交由全民公决外，绝大多数法律的制定完全可以交给经公民授权的代表来进行。这样，既可以保证法律对民意的代表性，保证立法人员有良好的素质，又可以节省广大民众的时间和精力，提高立法的效率。

法律绝对不能由政府官员自己来制定。如果法律由执政者自己来制定，使他们同时拥有制定法律和执行法律的权力，就会给人性的弱点以极大的诱。由于他们是与社会其余成员不同的阶层，有不同的利益，他们就会使法律适合于自己的需要。

法律由公民直接选举出的专职代表组成的立法机构来制定，是体现法律民意代表性的唯一途径。法律涉及全体公民的根本利益和行为方式，因此，法律的制定是一项细密而必须十分谨慎的工作，应当充分考虑到方方面面各类人的利益，即便是为了大部分人的重大利益而影响到少数人的部分利益，也必须谨慎从事。在制定法律时，必须允许各种不同利益的代表表达自己的意见，进行充分的讨论，才能兼顾各方面的利益，考虑到各种可能出现的问题，防止法律轻率出台，保证法律的公正、合理、严密、连贯性，使法律成为集体智慧的结晶。

保障法律严密性的一种十分简单而有效的办法就是采用一种缓慢的牵制性审议程序，例如，一项议案若不经过五、六次连续的讨论，或者其在被提交到立法机构里的时间太短，就不应表决通过。这种做法和一个聪明人办私事的做法很相似，人们对待自己生活中的重大事情，当然不会未经过周密的思考就作出决定。对立法机构讨论的任何问题，任何人都可以发表评论和意见，并有权就任何问题进行请愿与抗议。这是保障法治顺应民意、依民意运作的有效手段。

同样，公民选出的立法代表，不应让他们长期任职，而应当经常更换，以使他们能不断回到民众中间，体验平民的生活，感受到民众的需要，并保持民众意志对他们的控制，防止他们形成新的特权阶级，或者被少数人操纵和收买，脱离民众的利益。

任期内的定期集合与分散也同样必要。集合，使他们掌握共同制定法律的权力；分散，则使他们自己也受所制定法律的支配。

这种切身的约束，使他们在制定法律时会更注意普通百姓的利益。

2. 法官的产生

司法机关同样不能由行政官员来控制。法律的重要作用之一就是规定行政机关的运作机制，约束政府的行为。如果司法机关被政府所控制，受政府管辖，当政府官员违法时，就无法对其进行有效的惩罚，无法保证法律面前人人平等，使法律徒有其表，流于形式，失去威严。在某些社会，尽管有良好的法律，却无良好的法律秩序，其根本原因就是司法机关受政府控制，对政府本身的腐败行为无能为力，使法律成为专门对付平民的工具。因此，只有使司法机关独立于政府而存在，才能实现全面真正的法治。

在民主法治社会，法官肩负重任，对法官的个人素质有极高的要求，因此，法官的产生是一项需要严肃而认真对待的事情。

对法官人选的要求，不仅需要有高尚的人格、杰出的道德品行和相当高的社会威信，而且必须精通法学和社会学，学识渊博，具有长期的法律工作经验，并须通过严格的等级考试才能具备任职资格。选举产生法官是使司法能够代表民意的根本手段，在小的市镇，法官可直接由民主选举产生；在大都市，法官人选则应以间接民主方式产生，即由议会选举或经议会批准才能任命。

如果法官的人选是由行政长官以类似于安置其它政府机构人员的方式，如军人退伍转业、招工招干、院校分配等方式安排就业，经数年提升或职称评定就成为法官，终将导致司法机构充斥着政府官员的后裔、亲信，无法保证法官有优秀的个人素质。法官道德品性素质低下，在自己的亲戚、朋友、同学等错综复杂的社会关系面前就会徇私舞弊，而当事人在绝大多数情况下不可能发现这种关系而申请办案法官回避。法官之间私下打招呼，互相利用，对各自的亲朋好友网开一面，在不严谨的法律条文下偏袒一方，都将严重影响判决的公正性，损害当事人的利益，并导致申诉无门。同样，法官在学识学历、智商才干方面平庸无奇，办案效率低下，对案件的错判、误判也会屡见不鲜，同样损害司法机关的威严。在典型的专制腐败社会，案子前门送法院，当事人后门托人找法官，法官之间互相打招呼、互相利用、偏祖判决，分别在幕后从当事人处捞取好处，就会成为一种常见的令人厌恶的现象，使民众丧失对司法机关的信任，迫使百姓自行寻求办法解决争端，从而导致社会秩序混乱，社会矛盾激化，治安案件增加，法治成为一句空话。因此，实现民主的重要任务之一，就是建立起对各级法官的直接或间接的选举、更迭和罢免体系，确保法官有高尚的道德品性和渊博的法学和社会学知识，这样产生的法官才有资格担任维护社会法律和道德的重任。

民主的司法过程同立法一样，是社会公众意志的集体表现，不是政府行为，不代表政府意志，因此，司法人员的工作服装不需要是类似于政府官员的制服，这种制服会给人以司法人员是政府官员的假象；既然是民意的代表，身着典型的民主服装更能体现这种代表性。

如果说，由民众自己来制定法律是给社会走向法治的道路安装上了前轮，那么，司法过程也由民众自己来控制，就是给法治社会安装上了后轮，这样，民主法治社会始能运行自如。

3. 判决的代表性

司法的作用本身就是对于各类刑事案件、民事纠纷等，由处于公正立场、能代表民意的第三方来进行裁决。做到这一点的一个简单可行的办法就是建立陪审团制度。所谓陪审制度，就是从各社区、各行业信誉良好、有代表性的公民名单中，以随机组合的方式选出6~15名公民，组成一个陪审团，参与民事和刑事案件的审判过程。凡年满18岁到65 岁的登记选民，都有义务应法官的要求出庭担任陪审员。陪审团在法庭调查过程中，裁决与案件有关的问题，集体认定案件的性质和事实，确定适用条款。法官担任司法程序的管理者，根据陪审团确定的结论，依据法律规定进行量刑。这样做，可以减轻法官个人在确定案件时所承担的重大责任，也可以减少法官的人数，而非专业人员的审理往往更能代表民意。如果陪审团意见分歧太大，可以解散，另组新的陪审团重新进行审判。

没有人会绝对不犯错误，没有人能做到始终绝对公正。而陪审团的作用就是使判定案件具有更广泛的代表性，减少法官个人意志对审判结果的影响，促进判决的公正性。

4. 审判公开

要保证司法是代表民意进行的，司法审判过程就必须公开，使危害社会、侵犯其他公民权利的人受到公开惩处，对他人起到惩戒作用，并使审判结果接受社会舆论和各界人士的监督，揭去司法工作的神秘性，减少百姓对司法机构及其权力的恐惧心理。案件的审理、判决过程一律应公开进行，允许记者和公民自由旁听、报道其议事过程，除非案件涉及国防机密，或公开审理有损社会风气，并经法官一致同意决定不公开审理。对于政治犯、出版问题及其他与公民基本权利有关的案件，则必须全部公开审理，使公民确认当事人是否侵权、如何侵权、如何定罪。

同时，必须使原、被告双方的辩论在案件审判过程中发挥重要作用，以促进澄清许多没有证人或无法取证的实事，防止当事人因缺少证据而陷于孤立无援的境地。在只注重证据的情况下，特别是在民事案件中，时常会因当事人拿不出证据而导致错判误判。

编辑：李晶 校对：孔祥庆 翻译：戈冰

Politics and Democracy—Chapter 5: The Concept of Democratic Politics (Part II)

By Zhu Zhengming

(3) The Representation of Popular Will in the Rule of Law

The law applies to all societies that utilize written language. The law itself is a tool that can be adopted by any form of society and class, serving entirely different subjects.

There are laws of many temperaments: some lax and yielding, some strict and severe, some fractured and incomplete, and others woven with meticulous care. In the minds of the people, too, law occupies different altitudes. Certain laws are regarded with solemn respect, upheld willingly and almost instinctively by the public; others are scorned, violated at every turn, and drowned beneath the tide of collective disdain.

The vitality of any law rests upon the conscience and competence of those who enforce it. Yet when a statute is held in contempt by the majority—when violators abound and enforcers lack the time or strength to pursue them—only a few unfortunate souls, caught by chance, become its sacrificial victims. Such a law is already lifeless; it will slip quietly off the stage of society before long. But a law that accords with the common good, that earns the genuine respect of the people, can endure for centuries with scarcely a change.

To submit to laws fashioned by others is a kind of servitude; to submit to laws one has fashioned for oneself is a kind of freedom.

1. Representation in Legislation

Who formulates the laws and how they are formulated are the key factors determining whose will the laws represent and whose interests they serve.

The fundamental way to ensure that laws accord with the popular will is to let the masses directly formulate the laws themselves, allowing the people to become the authors of the law. Only in this way can morality become law, can law represent morality and popular sentiment, and can law accord with the interests of the broad masses, receiving their full respect and conscious observance.

The masses are a group composed of tens of millions of people; how can their will be extracted to form laws? Obviously, in a populous society, it is impossible for all people to personally participate in formulating all laws. Furthermore, formulating good laws requires specialized knowledge, which ordinary people may not necessarily possess, nor do citizens usually have sufficient time and energy to do it personally.

However, citizens possess the ability to identify among themselves who has such sufficient knowledge and competence, and who can represent their will. They can elect their own representatives to do it on their behalf. Therefore, except for a few momentous laws submitted to a nationwide referendum, the formulation of the vast majority of laws can be entrusted entirely to representatives authorized by citizens. In this way, it not only ensures the representation of popular will in laws and guarantees the good quality of legislative personnel, but also saves the time and energy of the broad masses, improving legislative efficiency.

Laws must absolutely not be formulated by government officials themselves. If laws are formulated by those in power themselves, granting them the power to both formulate and execute laws, it will present a massive temptation to the weaknesses of human nature. Since they belong to a class different from the rest of society with distinct interests, they will adapt the laws to suit their own needs.

The formulation of laws by a legislative body composed of full-time representatives directly elected by citizens is the sole avenue to manifest the representation of popular will in the law. Because laws concern the fundamental interests and modes of behavior of all citizens, the formulation of laws is a meticulous and necessarily cautious endeavor; full consideration should be given to the interests of all types of people in every aspect, and even if the minor interests of a few are impacted for the sake of the major interests of the majority, it must still be handled with prudence. When formulating laws, representatives of various differing interests must be permitted to express their opinions and engage in full deliberation, so that interests of all sides can be taken into account, various potential issues can be considered, rash enactment of laws can be prevented, and the fairness, rationality, rigor, and coherence of the laws can be guaranteed, making the laws the crystallization of collective wisdom.

A very simple and effective method to safeguard the rigor of laws is to adopt a slow, check-and-balance deliberative procedure. For instance, if a bill has not undergone five or six consecutive rounds of discussion, or if the time it has been submitted to the legislative body is too brief, it should not be voted on and passed. This practice is quite similar to how a wise person handles personal affairs; when dealing with major matters in their own lives, people naturally do not make decisions without thorough contemplation. Regarding any issue discussed by the legislative body, anyone may publish comments and opinions, and has the right to petition and protest on any issue. This is an effective means to guarantee that the rule of law conforms to the popular will and operates according to it.

Likewise, legislative representatives elected by citizens should not be allowed to hold office for long terms, but should be replaced frequently, so that they can continuously return among the masses, experience the lives of common people, feel the needs of the masses, and maintain the control of the masses’ will over them, thereby preventing them from forming a new privileged class, or being manipulated and bought off by a minority, becoming detached from the interests of the masses.

Periodic convening and dispersing during the term of office are equally necessary. Convening enables them to exercise the power of jointly formulating laws; dispersing, on the other hand, subjects them to the governance of the very laws they formulated.

This personal restraint makes them pay greater attention to the interests of ordinary people when formulating laws.

2. The Selection of Judges

Judicial organs likewise cannot be controlled by executive officials. One of the vital functions of the law is to prescribe the operational mechanisms of executive organs and constrain government behavior. If judicial organs are controlled by the government and subject to its jurisdiction, then when government officials break the law, it becomes impossible to effectively punish them or guarantee that everyone is equal before the law, leaving the law as a mere facade that devolves into formality and loses its authority. In certain societies, despite having good laws, there is no good legal order; the fundamental reason is that judicial organs are controlled by the government and are powerless against the corrupt conduct of the government itself, turning the law into a tool used exclusively against commoners. Therefore, only by enabling judicial organs to exist independently of the government can full and genuine rule of law be realized.

In a democratic society under the rule of law, judges bear heavy responsibilities and are held to extremely high standards of personal caliber; thus, the selection of judges is a matter that demands serious and earnest treatment.

Requirements for candidates for judgeships mandate not only noble character, outstanding moral conduct, and considerable social prestige, but also mastery in jurisprudence and sociology, profound scholarship, and long-term legal work experience; furthermore, they must pass rigorous rank examinations to become qualified for office. Electing judges is the fundamental means to ensure the judiciary represents the popular will. In small towns, judges can be elected directly through democratic elections; in metropolises, candidates for judgeships should be produced through indirect democratic means, namely elected by the parliament or appointed only upon parliamentary approval.

If candidates for judgeships are arranged for employment by the chief executive in a manner similar to placing personnel in other government organs—such as military veterans reassigned to civilian jobs, recruitment of workers and cadres, or assignments from colleges—and become judges after several years of promotion or professional title evaluation, it will ultimately lead to the judicial machinery being filled with the descendants and cronies of government officials, making it impossible to guarantee that judges possess superior personal caliber. When judges are of low moral and character caliber, they will commit nepotism and fraud when facing intricate social ties such as their own relatives, friends, and classmates, while litigants, in the vast majority of cases, cannot possibly discover such relationships to apply for the recusal of the handling judge. Judges dropping hints to each other in private, exploiting one another, showing leniency toward their respective friends and family, and favoring one party under vague legal statutes will all severely compromise the impartiality of rulings, harm the interests of litigants, and leave them with no avenue for appeal. Likewise, if judges are mediocre and unexceptional in terms of academic background, IQ, and capability, and inefficient in handling cases, misjudgments and miscarriages of justice will also become common occurrences, similarly damaging the authority of judicial organs. In a typical autocratic and corrupt society, where cases are sent to court through the front door while litigants seek out judges through contacts via the back door, and where judges exchange favors, exploit one another, deliver biased rulings, and separately reap benefits from litigants behind the scenes, it becomes a common and repulsive phenomenon. This causes the public to lose trust in judicial organs and forces common people to seek their own ways to resolve disputes, thereby leading to chaotic social order, intensified social contradictions, an increase in public security cases, and making the rule of law an empty phrase. Therefore, one of the crucial tasks in achieving democracy is to establish a system for the direct or indirect election, replacement, and recall of judges at all levels, ensuring that judges possess noble moral character and profound knowledge of law and sociology. Only judges produced in this way are qualified to undertake the heavy responsibility of maintaining social law and morality.

The democratic judicial process, like legislation, is a collective expression of the public will of society; it is not a government action and does not represent the government’s will. Therefore, the work attire of judicial personnel need not be uniforms similar to those of government officials, as such uniforms convey the false impression that judicial personnel are government officials; since they are representatives of the popular will, wearing typical democratic attire can better reflect this representation.

If letting the people formulate laws themselves is akin to installing the front wheels on society’s path toward the rule of law, then having the judicial process also controlled by the people themselves is installing the rear wheels for a society under the rule of law. Only then can a democratic society under the rule of law operate with ease and freedom.

3. The Representation of Popular Will in Verdicts

The function of the judiciary itself is to have a third party that holds an impartial stance and represents the popular will adjudicate all types of criminal cases, civil disputes, and other matters. A simple and feasible way to achieve this is to establish a jury system. The so-called jury system selects 6 to 15 citizens through random selection from lists of reputable and representative citizens across various communities and industries to form a jury and participate in the trial process of civil and criminal cases. All registered voters aged 18 to 65 are obligated to appear in court and serve as jurors at the request of the judge. During court investigations, the jury decides on questions related to the case, collectively determines the nature and facts of the case, and specifies the applicable legal provisions. The judge serves as the administrator of the judicial procedure and passes sentence in accordance with legal provisions based on the conclusions determined by the jury. Doing so can relieve individual judges of the heavy responsibility borne when determining cases and can also reduce the number of judges; furthermore, adjudications by non-professionals are often better able to represent the popular will. If opinions within the jury are too divided, it may be dismissed and a new jury formed to conduct a retrial.

No one is entirely immune to making mistakes, and no one can remain absolutely impartial at all times. The role of the jury is precisely to ensure that adjudicating cases possesses broader representation, to diminish the influence of a judge’s personal will on trial outcomes, and to promote the fairness of verdicts.

4. Openness of Trials

To ensure that justice is administered on behalf of the popular will, judicial trial procedures must be conducted openly, so that those who endanger society and infringe upon the rights of other citizens are publicly punished, serving as a deterrent to others. Furthermore, open trials subject trial outcomes to the supervision of public opinion and individuals from all walks of life, stripping away the aura of mystery surrounding judicial work and reducing the common people’s fear of judicial organs and their power. The hearing and verdict processes of cases should invariably be conducted in public, permitting journalists and citizens to freely attend and report on their proceedings, unless a case involves national defense secrets or a public hearing would harm social morality, and it is decided by unanimous consent of the judges to hold a closed hearing. Regarding political prisoners, publishing issues, and other cases involving citizens’ fundamental rights, all hearings must be conducted fully in public, enabling citizens to confirm whether the parties involved committed an infringement, how the infringement occurred, and how convictions are determined.

At the same time, the debate between plaintiff and defendant must be allowed to play a vital role throughout the trial. Only thus can many facts for which no witnesses exist, or which defy ordinary means of proof, be brought to light—lest a party, bereft of evidence, find himself isolated and helpless. When the court heeds evidence alone, especially in civil cases, misjudgment and miscarriage of justice too often follow simply because a party cannot produce the required proof.

Editor: Li Jing Proofreader: Kong Xiangqing Translator: Ge Bing