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学界对于“从契约到身份”命题的讨论莫衷一是,如果“身份”指的是强势与弱势的身份之别,则在现代社会中,“从契约到身份”的命题是成立的。现实社会中“从契约到身份”的运动反映到私法领域,则意味着私法的自我矫正进程。在法规范层次上以格式合同为例的分析反映了私法依据身份矛盾因素,运用设权的法律技术使私法主体的法律地位相对平等,进而实现实质性的私法自治。在法哲学层次上的分析则表明了,私法的自我矫正是私法在面临形式理性的危机时运用反思理性对社会系统进行重新整合的过程。同时,这两个层次的分析亦表明,囿于私法的主旨,私法中“从契约到身份”的自我矫正对现实社会的身份矛盾无法做出最充分的回应。因此,与私法有着不同主旨和调整模式,并以身份矛盾因素为规范重心、以反思理性为主导的社会法便超越了私法的自我矫正,对社会现实做出更充分的回应。以此观照当代中国的法治进程,则可以铺设出法治发展的双重轨道:通往成熟的契约社会的“从身份到契约”之轨与通往正义社会的“从契约到身份”之轨,而后者又有两条分轨道,一为私法的自我矫正,二为社会法的开拓完善。
The academic discussion on the proposition “from contract to identity” is not clear. If “identity” refers to the difference between strong and weak identities, the proposition of “from contract to identity” is established in modern society of. In the real world, “the movement from contract to identity” is reflected in the field of private law, which implies the self-correction process of private law. The analysis of the format contract in the level of legal norms reflects that the private law is based on the contradictory factors of identity and uses the legal technology of the right to make the legal status of the main body of private law relatively equal so as to realize the substantive autonomy of private law. Analysis on the level of jurisprudence shows that the self-correction of private law is the process by which private law reintegrates the social system by using reflective rationality in the face of the crisis of formal rationality. At the same time, these two levels of analysis also show that, since the main thrust of private law, private law “from contract to identity ” self-correction can not be the most adequate response to the reality of social identity. Therefore, different from the private law, there are different themes and modes of adjustment, and the identity-based contradictions are the center of gravity. The social law led by the reflection of rationality goes beyond the self-correction of private law and responds more fully to the social reality. In order to observe the process of the rule of law in contemporary China, we can lay the double track of the development of the rule of law: the track of “from identity to contract” and “the contract from identity to the society of justice” While the latter has two separate tracks. One is the self-correction of private law and the other is the improvement of social law.