| 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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