法治=守法?從Obama就職演說與「Rule of Law」說起


Obama 就職演說影片


My fellow citizens:

I stand here today humbled by the task before us, grateful for the trust you have bestowed, mindful of the sacrifices borne by our ancestors. I thank President Bush for his service to our nation, as well as the generosity and cooperation he has shown throughout this transition.

Forty-four Americans have now taken the presidential oath. The words have been spoken during rising tides of prosperity and the still waters of peace. Yet, every so often the oath is taken amidst gathering clouds and raging storms. At these moments, America has carried on not simply because of the skill or vision of those in high office, but because We the People have remained faithful to the ideals of our forbearers, and true to our founding documents.

So it has been. So it must be with this generation of Americans.

That we are in the midst of crisis is now well understood. Our nation is at war, against a far-reaching network of violence and hatred. Our economy is badly weakened, a consequence of greed and irresponsibility on the part of some, but also our collective failure to make hard choices and prepare the nation for a new age. Homes have been lost; jobs shed; businesses shuttered. Our health care is too costly; our schools fail too many; and each day brings further evidence that the ways we use energy strengthen our adversaries and threaten our planet.

These are the indicators of crisis, subject to data and statistics. Less measurable but no less profound is a sapping of confidence across our land - a nagging fear that America's decline is inevitable, and that the next generation must lower its sights.

Today I say to you that the challenges we face are real. They are serious and they are many. They will not be met easily or in a short span of time. But know this, America - they will be met.

On this day, we gather because we have chosen hope over fear, unity of purpose over conflict and discord.

On this day, we come to proclaim an end to the petty grievances and false promises, the recriminations and worn out dogmas, that for far too long have strangled our politics.

We remain a young nation, but in the words of Scripture, the time has come to set aside childish things. The time has come to reaffirm our enduring spirit; to choose our better history; to carry forward that precious gift, that noble idea, passed on from generation to generation: the God-given promise that all are equal, all are free, and all deserve a chance to pursue their full measure of happiness.

In reaffirming the greatness of our nation, we understand that greatness is never a given. It must be earned. Our journey has never been one of short-cuts or settling for less. It has not been the path for the faint-hearted - for those who prefer leisure over work, or seek only the pleasures of riches and fame. Rather, it has been the risk-takers, the doers, the makers of things - some celebrated but more often men and women obscure in their labor, who have carried us up the long, rugged path towards prosperity and freedom.

For us, they packed up their few worldly possessions and traveled across oceans in search of a new life.

For us, they toiled in sweatshops and settled the West; endured the lash of the whip and plowed the hard earth.

For us, they fought and died, in places like Concord and Gettysburg; Normandy and Khe Sahn.

Time and again these men and women struggled and sacrificed and worked till their hands were raw so that we might live a better life. They saw America as bigger than the sum of our individual ambitions; greater than all the differences of birth or wealth or faction.

This is the journey we continue today. We remain the most prosperous, powerful nation on Earth. Our workers are no less productive than when this crisis began. Our minds are no less inventive, our goods and services no less needed than they were last week or last month or last year. Our capacity remains undiminished. But our time of standing pat, of protecting narrow interests and putting off unpleasant decisions - that time has surely passed. Starting today, we must pick ourselves up, dust ourselves off, and begin again the work of remaking America.

For everywhere we look, there is work to be done. The state of the economy calls for action, bold and swift, and we will act - not only to create new jobs, but to lay a new foundation for growth. We will build the roads and bridges, the electric grids and digital lines that feed our commerce and bind us together. We will restore science to its rightful place, and wield technology's wonders to raise health care's quality and lower its cost. We will harness the sun and the winds and the soil to fuel our cars and run our factories. And we will transform our schools and colleges and universities to meet the demands of a new age. All this we can do. And all this we will do.

Now, there are some who question the scale of our ambitions - who suggest that our system cannot tolerate too many big plans. Their memories are short. For they have forgotten what this country has already done; what free men and women can achieve when imagination is joined to common purpose, and necessity to courage.

What the cynics fail to understand is that the ground has shifted beneath them - that the stale political arguments that have consumed us for so long no longer apply. The question we ask today is not whether our government is too big or too small, but whether it works - whether it helps families find jobs at a decent wage, care they can afford, a retirement that is dignified. Where the answer is yes, we intend to move forward. Where the answer is no, programs will end. And those of us who manage the public's dollars will be held to account - to spend wisely, reform bad habits, and do our business in the light of day - because only then can we restore the vital trust between a people and their government.

Nor is the question before us whether the market is a force for good or ill. Its power to generate wealth and expand freedom is unmatched, but this crisis has reminded us that without a watchful eye, the market can spin out of control - and that a nation cannot prosper long when it favors only the prosperous. The success of our economy has always depended not just on the size of our Gross Domestic Product, but on the reach of our prosperity; on our ability to extend opportunity to every willing heart - not out of charity, but because it is the surest route to our common good.

As for our common defense, we reject as false the choice between our safety and our ideals. Our Founding Fathers, faced with perils we can scarcely imagine, drafted a charter to assure the rule of law and the rights of man, a charter expanded by the blood of generations. Those ideals still light the world, and we will not give them up for expedience's sake. And so to all other peoples and governments who are watching today, from the grandest capitals to the small village where my father was born: know that America is a friend of each nation and every man, woman, and child who seeks a future of peace and dignity, and that we are ready to lead once more.

Recall that earlier generations faced down fascism and communism not just with missiles and tanks, but with sturdy alliances and enduring convictions. They understood that our power alone cannot protect us, nor does it entitle us to do as we please. Instead, they knew that our power grows through its prudent use; our security emanates from the justness of our cause, the force of our example, the tempering qualities of humility and restraint.

We are the keepers of this legacy. Guided by these principles once more, we can meet those new threats that demand even greater effort - even greater cooperation and understanding between nations. We will begin to responsibly leave Iraq to its people, and forge a hard-earned peace in Afghanistan. With old friends and former foes, we will work tirelessly to lessen the nuclear threat, and roll back the specter of a warming planet. We will not apologize for our way of life, nor will we waver in its defense, and for those who seek to advance their aims by inducing terror and slaughtering innocents, we say to you now that our spirit is stronger and cannot be broken; you cannot outlast us, and we will defeat you.

For we know that our patchwork heritage is a strength, not a weakness. We are a nation of Christians and Muslims, Jews and Hindus - and non-believers. We are shaped by every language and culture, drawn from every end of this Earth; and because we have tasted the bitter swill of civil war and segregation, and emerged from that dark chapter stronger and more united, we cannot help but believe that the old hatreds shall someday pass; that the lines of tribe shall soon dissolve; that as the world grows smaller, our common humanity shall reveal itself; and that America must play its role in ushering in a new era of peace.

To the Muslim world, we seek a new way forward, based on mutual interest and mutual respect. To those leaders around the globe who seek to sow conflict, or blame their society's ills on the West - know that your people will judge you on what you can build, not what you destroy. To those who cling to power through corruption and deceit and the silencing of dissent, know that you are on the wrong side of history; but that we will extend a hand if you are willing to unclench your fist.

To the people of poor nations, we pledge to work alongside you to make your farms flourish and let clean waters flow; to nourish starved bodies and feed hungry minds. And to those nations like ours that enjoy relative plenty, we say we can no longer afford indifference to suffering outside our borders; nor can we consume the world's resources without regard to effect. For the world has changed, and we must change with it.

As we consider the road that unfolds before us, we remember with humble gratitude those brave Americans who, at this very hour, patrol far-off deserts and distant mountains. They have something to tell us today, just as the fallen heroes who lie in Arlington whisper through the ages. We honor them not only because they are guardians of our liberty, but because they embody the spirit of service; a willingness to find meaning in something greater than themselves. And yet, at this moment - a moment that will define a generation - it is precisely this spirit that must inhabit us all.

For as much as government can do and must do, it is ultimately the faith and determination of the American people upon which this nation relies. It is the kindness to take in a stranger when the levees break, the selflessness of workers who would rather cut their hours than see a friend lose their job which sees us through our darkest hours. It is the firefighter's courage to storm a stairway filled with smoke, but also a parent's willingness to nurture a child, that finally decides our fate.

Our challenges may be new. The instruments with which we meet them may be new. But those values upon which our success depends - honesty and hard work, courage and fair play, tolerance and curiosity, loyalty and patriotism - these things are old. These things are true. They have been the quiet force of progress throughout our history. What is demanded then is a return to these truths. What is required of us now is a new era of responsibility - a recognition, on the part of every American, that we have duties to ourselves, our nation, and the world, duties that we do not grudgingly accept but rather seize gladly, firm in the knowledge that there is nothing so satisfying to the spirit, so defining of our character, than giving our all to a difficult task.

This is the price and the promise of citizenship.

This is the source of our confidence - the knowledge that God calls on us to shape an uncertain destiny.

This is the meaning of our liberty and our creed - why men and women and children of every race and every faith can join in celebration across this magnificent mall, and why a man whose father less than sixty years ago might not have been served at a local restaurant can now stand before you to take a most sacred oath.

So let us mark this day with remembrance, of who we are and how far we have traveled. In the year of America's birth, in the coldest of months, a small band of patriots huddled by dying campfires on the shores of an icy river. The capital was abandoned. The enemy was advancing. The snow was stained with blood. At a moment when the outcome of our revolution was most in doubt, the father of our nation ordered these words be read to the people:

"Let it be told to the future world...that in the depth of winter, when nothing but hope and virtue could survive...that the city and the country, alarmed at one common danger, came forth to meet [it]."

America. In the face of our common dangers, in this winter of our hardship, let us remember these timeless words. With hope and virtue, let us brave once more the icy currents, and endure what storms may come. Let it be said by our children's children that when we were tested we refused to let this journey end, that we did not turn back nor did we falter; and with eyes fixed on the horizon and God's grace upon us, we carried forth that great gift of freedom and delivered it safely to future generations.

As for our common defense, we reject as false the choice between our safety and our ideals. Our Founding Fathers, faced with perils we can scarcely imagine, drafted a charter to assure the rule of law and the rights of man, a charter expanded by the blood of generations. Those ideals still light the world, and we will not give them up for expedience's sake. And so to all other peoples and governments who are watching today, from the grandest capitals to the small village where my father was born: know that America is a friend of each nation and every man, woman, and child who seeks a future of peace and dignity, and that we are ready to lead once more.
這一段批評 Bush 真是一針見血,而剛好攝影機也正在此時不斷拍 Bush 他那極「冏」的畫面。這一段剛好也是現場歡呼及掌聲回應最熱烈的一段。

這裡面的典故其實也不難。Bush 一直以來一再強調「美國」(還是只有他自己?)正在打一場反恐戰爭(War on Terror),為了國家安全,所以只好採用許多誇張的侵害人權措施達成目的。而 Obama 在此的演說就公開批評了,美國獨立建國初期處境還更艱難,國家安全更緊迫,可是當時的開國元勳仍然起草了諸如〈美國獨立宣言〉、〈美國憲法〉以保障人權,Bush 的作為反倒是在破壞 rule of law 以及 rights of man。

Rule of law,想來就悲哀,這個在台灣多麼遙遠不可及的名詞;相對的,rule by law 反倒是這塊土地上人人熟悉的概念:法治法治,人民要守法,法律是用來遵守的……


因此,當有一天,我們的國家機器開始強力塑造一種「社會秩序」、「國家安全」等 “greater good” 的需求想像,而全民毫無異議的買單接收時,這就如同威碼共和一般,民主自由的崩解時刻將要到來了,因為,為了 “greater good” ,政府要作什麼,要如何「依法行政」,要立什麼法都可以,因為我們是「法治」國家,人民只能守法,只能乖乖的聽話;如同前些日子陳雲林來臺期間的大規模集團化國家濫權行為之所以沒人出來反抗,反得到人民的支持,就是那個「國際形象」、「國際禮儀」的想像造成的;明明是違法行為,政府卻可以硬凹說一切依法行政;明明是違法行為,人民卻支持國家;明明人權與社會秩序的界限就是固定的,人民卻傻傻的被政府唬住,而迷糊地將人權讓步了。我想,即便在台灣,如果時機真的成熟,那麼即便立一個殺光所有台獨份子或殺光所有外省人的法出現且真正執行,我都不感覺意外,因為台灣人就是這麼樣的落後這麼樣的笨這麼樣的保守這麼樣的犬儒。這中間我們可以知道,就如同納粹的崛起和猶太人被屠殺一樣,有一部份都是因為這類實證法征服一切,形式法治國原則當道,氣焰旺盛的論述,不講正當性,只講合法性的結果導致的,都是人民沒有自由民主憲政秩序的信仰所造成的。美國這麼樣的老牌民主自由國家,即便 Bush 這明顯 mentally retarded 的傢伙不斷地強調 “War on Terror” 都照樣有人相信,且藉由這個不存在的 “War on Terror” 盡情剝奪人民權利(如誇張的機場全面過份安檢、非法監聽、行政集權、干涉學術自由、騷擾中東裔移民、將非法移民入罪、以及私設刑堂施加酷刑、可以把人終生監禁的 Guantánamo Bay detention camp 等)都仍有人支持的情況下,台灣——一個這麼樣落後的國家——又怎麼可能堅持住人權的底線?又怎麼真正落實「民主自由」?存在於社會上的這些落後思想,怎能讓人不憂心台灣的未來呢?而我們的權力分立制度又不夠紮實,掌握國家機器的高層極度保守,人民的公民意識尚未成熟的情況之下,弱勢或少數者甚至到最後全體公民豈不只能任人宰割?原來權威、戒嚴離我們並不是那麼的久。原來人民在這十幾年中早已被馴化了,人民早已不再有反抗意識,民主自由的強度比起以往更加脆弱且不堪一擊。

「法治」(Rule of Law)真正的內涵,在於拘束國家權力,而非強調人民守法,這是一再被強調的;國家機器的權力運作必須符合自由民主憲政秩序的要求,而一旦符合自由民主憲政秩序,則人民才有必要去遵守這些法律、命令與處分等國家行為(state action)。


而這正是民主自由的概念:先有民主自由,然後為了鞏固自由民主才要限制國家權力,為了限制國家權力才有 rule of law,然後才有各式各樣的 law,這些 law,都是實質意義的 law,都是超實證的,而非形式的。所有關係國家機器的作為都是 law 的表現,而這些表現追根究底都是國民主權(popular sovereignty)、公共意志(general will)的展現,國民主權來自於人民,國家行為也就當然必須要合乎公共意志,也就是來自於民主自由,民主自由因此佔了最崇高的地位,這也就是為什麼我們會有一個學術用詞叫做「自由民主憲政秩序」為最高規範了。



補充:V怪客(V for Vendetta)電影中V的台詞,也另外有一番 rule of law 和 national security/law and order 對比的闡述:

先讓我為節目中斷致歉。我跟大家一樣喜歡舒舒服服 一成不變的日常生活 我樂見其成
Good evening, London.
Allow me first to apologize for this interruption. I do, like many of you, appreciate the comforts of every day routine- the security of the familiar, the tranquility of repetition. I enjoy them as much as any bloke.
但是今天非比尋常,過去的重大節日,通常是紀念偉人逝世,或是血腥的戰爭,大家都不必上班上課,我提議把11月5日訂為國假,雖然這一天早已被遺忘,我們都不曾坐下好好討論過這一天But in the spirit of commemoration, thereby those important events of the past usually associated with someone's death or the end of some awful bloody struggle, a celebration of a nice holiday, I thought we could mark this November the 5th, a day that is sadly no longer remembered, by taking some time out of our daily lives to sit down and have a little chat.
儘管政府限制我們的言論自由,他們一定急得像熱鍋上的螞蟻,武裝警察也正趕來抓我,為什麼?因為就算政府不讓人民發言,言論自由仍然有強大力量,言論是表達意見的方式,它也能向廣大人民揭露真相There are of course those who do not want us to speak. I suspect even now, orders are being shouted into telephones, and men with guns will soon be on their way. Why? Because while the truncheon may be used in lieu of conversation, words will always retain their power. Words offer the means to meaning, and for those who will listen, the enunciation of truth.
真相是…這是個極權政府,暴虐無道、殘殺無辜,人民曾經擁有言論自由,暢所欲言、抒發己見,現在政府卻使用極端暴力,強迫人民乖乖聽話,怎麼會這樣?這要怪誰?And the truth is, there is something terribly wrong with this country, isn't there? Cruelty and injustice, intolerance and oppression. And where once you had the freedom to object, to think and speak as you saw fit, you now have censors and systems of surveillance coercing your conformity and soliciting your submission. How did this happen? Who's to blame?
這是某些當權者的決定,他們必須付出代價,不過每個人都難脫其疚,大家都敢怒不敢言。我知道原因,你們很害怕,誰不怕呢?戰爭、恐怖行動、世紀疾病,這一連串可怕的事,蒙蔽你們的理性和常識,恐懼引起你們的恐慌,於是向亞當蘇特勒大統領求助,他保證能重建秩序與和平,只要你們保持沉默、乖乖聽話Well certainly there are those more responsible than others, and they will be held accountable, but again truth be told, if you're looking for the guilty, you need only look into a mirror. I know why you did it. I know you were afraid. Who wouldn't be? War, terror, disease. There were a myriad of problems which conspired to corrupt your reason and rob you of your common sense. Fear got the best of you, and in your panic you turned to the now high chancellor, Adam Sutler. He promised you order, he promised you peace, and all he demanded in return was your silent, obedient consent.
昨晚我打破了沉默,炸毀老貝裡大樓,提醒大家一段早被遺忘的歷史,四百年前有個人想把11月5日,永遠深刻在人民記憶之中,他希望提醒世人正義和自由並不是抽象概念,而是一種人生態度Last night I sought to end that silence. Last night I destroyed the Old Bailey, to remind this country of what it has forgotten. More than four hundred years ago a great citizen wished to embed the fifth of November forever in our memory. His hope was to remind the world that fairness, justice, and freedom are more than words, they are perspectives.
如果你們睜一隻眼閉一隻眼,對政府的惡行視若無睹,那就不用去紀念11月5日,如果你們像我一樣,親眼目睹各種不平之事,和我有著同樣的感受,也想改變這一切,那麼今晚的一年以後,和我一起到國會大廈的大門,給他們一個永生難忘的11月5日So if you've seen nothing, if the crimes of this government remain unknown to you then I would suggest you allow the fifth of November to pass unmarked. But if you see what I see, if you feel as I feel, and if you would seek as I seek, then I ask you to stand beside me one year from tonight, outside the gates of Parliament, and together we shall give them a fifth of November that shall never, ever be forgot.



台灣宏觀-「TAIWAN OUTLOOK」林佳範 張澤平 Law-Related Education in Taiwan

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