【金句】Friedrich Hayek - An order that is called a ‘law’ merely because it emanates from the...

連結

• 來源1 - x.com/FAHayekSays/st...

• 來源2 - www.mises.at/static/...

An order that is called a ‘law’ merely because it emanates from the legislative authority is the chief instrument of oppression.

一條僅僅因為它來自立法機關而被稱為「法律」的命令，是壓迫的主要工具。

額外內容

完整段落

It is not to be denied that even general, abstract rules, equally applicable to all, may possibly constitute severe restrictions on liberty. But when we reflect on it, we see how very unlikely this is. The chief safeguard is that the rules must apply to those who lay them down and those who apply them-that is, to the government as well as the governed-and that nobody has the power to grant exceptions. If all that is prohibited and enjoined is prohibited and enjoined for all without exception (unless such exception follows from another general rule) and if even authority has no special powers except that of enforcing the law, little that any body may reasonably wish to do is likely to be prohibited. It is possible that a fanatical religious group will impose upon the rest restrictions which its members will be pleased to observe but which will be obstacles for others in the pursuit of important aims. But if it is true that religion. has often provided the pretext for the establishing of rules felt to be extremely oppressive and that religious liberty is therefore regarded as very important for freedom, it is also significant that religious beliefs seem to be almost the only ground on which general rules seriously restrictive of liberty have ever been universally enforced. But how comparatively innocuous, even if irksome, are most such restrictions imposed on literally every body, as, for instance, the Scottish Sabbath, compared with those that are likely to be imposed only on some! It is significant that most restrictions on what we regard as private affairs, such as sumptuary legislation, have usually been imposed only on selected groups of people or, as in the case of prohibition, were practicable only because the government reserved the right to grant exceptions.

不能否認，即使是普遍且抽象的規則，同樣適用於所有人，也可能對自由造成嚴厲的限制。但是，當我們仔細思考時，會發現這種可能性多麼微乎其微。主要的保護措施在於這些規則必須適用於制定這些規則的人和執行這些規則的人——也就是政府和被治理者——而沒有人有權例外。如果所有被禁止和要求做的事對所有人無一例外地都是禁止和要求的（除非這樣的例外源自其他普遍的規則），且即使是權力也沒有任何特殊的權利，只有執行法律的權力，那麼任何一個合理希望做的事情不太可能被禁止。極端的宗教團體可能對其他人施加限制，其成員會很高興遵守這些限制，但這對追求重要目標的人來說將成為障礙。但是，如果宗教確實經常是建立令人極度不快的規則的藉口，而宗教自由因此而被視為對於自由至關重要，那麼值得注意的是，宗教信仰似乎是唯一一個普遍執行嚴格限制自由的一般規則的基礎。然而，即使是對每個人來說也相對無害（即使有些令人煩惱），像蘇格蘭的安息日之類的限制，與只會對某些人施加限制的限制相比，哪個更可怕？值得注意的是，我們認為屬於私人事務的大部分限制，例如奢侈品法規，通常只適用於特定的人群，或者在禁酒的情況下，只有因為政府保留例外權才可行。

It should also be remembered that, so far as men's actions toward other persons are concerned, freedom can never mean more than that they are restricted only by general rules. Since there is no kind of action that may not interfere with another person's protected sphere, neither speech, nor the press, nor the exercise of religion can be completely free. In all these fields (and, as we shall see later, in that of contract) freedom does mean and can mean, only that what we may do is not dependent on the approval of any person or authority and is limited only by the same abstract rules that apply equally to all.

另外需要記住的是，就人們對其他人的行為而言，自由永遠不能超過被一般規則所限制的事實。由於沒有任何行為可能干擾別人受保護的領域，所以言論、新聞或宗教活動無法完全自由。在所有這些領域（以及如後面所述的合同領域），自由意味著且只能意味著我們能做的事不依賴任何人的同意或權力，僅受到同樣適用於所有人的抽象規則的限制。

But if it is the law that makes us free, this is true only of the law in this sense of abstract general rule, or of what is called "the law in the material meaning," which differs from law in the merely formal sense by the character of the rules and not by their origin. The "law" that is a specific command, an order that is called a "law" merely because it emanates from the legislative authority, is the chief instrument of oppression. The confusion of these two conceptions of law and the loss of the belief that laws can rule, that men in laying down and enforcing laws in the former sense are not enforcing their will, are among the chief causes of the decline of liberty, to which legal theory has contributed as much as political doctrine.

但是，如果法律使我們自由，那麼只有在抽象的一般規則的意義上，或者所謂的“物質意義的法律”，這與只是形式意義上的法律不同，其區別在於規則的特點而非其來源。具體的命令、被稱為“法律”僅因為它來自立法權力的命令，是壓迫的主要工具。對這些兩種法律概念的混淆以及對法律能統治的信念的喪失，即制定和執行法律的人並非執行他們的意願，是自由衰退的主要原因，而法學理論對此貢獻了與政治教義同樣多的影響。

We shall have to return later to the manner in which modern legal theory has increasingly obscured these distinctions. Here we can only indicate the contrast between the two concepts of law by giving examples of the extreme positions taken on them. The classical view is expressed in Chief Justice John Marshall's famous statement: "Judicial power; as contradistinguished from the power of laws, has no existence. Courts are mere instruments of law, and can will nothing." Hold against this the most frequently quoted statement of a modern jurist, that has found the greatest favor among so-called progressives, namely, Justice Holmes's that "general propositions do not decide concrete cases. "The same position has been put by a contemporary political scientist thus: "The law cannot rule. Only men can exercise power over other men. To say that the law rules and not men, may consequently signify that the fact is to be hidden that men rule over men."

我們稍後將討論現代法學理論如何越來越模糊這些區別。在這裡，我們只能通過提供對這兩種法律概念極端立場的範例來指出它們之間的對比。傳統觀點在首席大法官約翰·馬歇爾的著名陳述中表達了："司法權力，與法律權力相區別，並不存在。法庭只是法律的工具，無權做任何事情。" 這與現代法學家最常引用的陳述相對抗，後者在所謂的進步主義者中有最大的影響力，即霍姆斯正義的“普遍性原則不會決定具體案件”。一位當代的政治科學家以類似的方式表達了同樣的觀點：“法律無法統治。只有人才能行使權力。說法律統治而非人可能意味著隱藏事實，即人統治著人。”

The fact is that, if "to rule" means to make men obey another's will, government has no such power to rule in a free society. The citizen as citizen cannot be ruled in this sense, cannot be ordered about, no matter what his position may be in the job he has chosen for his own purposes or while, in accordance with the law, he temporarily becomes the agent of government. He can be ruled, however, in the sense in which "to rule" means the enforcement of general rules, laid down irrespective of the particular case and equally applicable to all. For here no human decision will be required in the great majority of cases to which the rules apply; and even when a court has to determine how the general rules may be applied to a particular case, it is the implications of the whole system of accepted rules that decide, not the will of the court.

事實上，如果“統治”意味著使人服從別人的意志，那麼在自由社會中政府就沒有這樣的統治權力。公民作為公民不能以這種意義被統治，也不能受到命令，無論其地位如何，都在他們為自己目的選擇的工作中或根據法律暫時成為政府的代理人。然而，他可以按照“統治”的含義被統治，即執行不考慮具體情況的一般規則，而這些規則對所有人都同樣適用。在這裡，在大部分適用於這些規則的案件中，不需要任何人類決定；即使當法院必須決定如何將一般規則應用於具體案件時，整套公認規則的暗示也會決定，而不僅是法院的意願。