实践思维视域下中国法治的改进

发布时间：2018-05-18 13:58

本文选题：实践思维 + 法治　；参考：《河北经贸大学》2012年硕士论文

【摘要】：实践是人类特有的存在方式和生存状态,以实践的思维方式去思考当下的法律问题,就是要我们以理性的方式并用行动的态度对待法律的生存状态和存在方式。中国的法治建设从口号的提出到具体的实施已经走了一段路程,而现有法治的思维方式是否是真正适合我们的,是否真的能够达到我们预想的法治还值得商榷。随着人类社会实践的发展,以人的实践为核心的时代命题已经全面发展起来,这当然也包括法治的建设,法治的完善离不开人得实践,离不开行动的立法、司法,法律只有在实践中得以运用才会实现制定法律的目的,才能实现法律的价值所在。而在实践思维的视域下去思考法治的完善问题,需要我们培养一种实践的智慧,这种实践智慧也并不是一朝一夕就能够建立的,它需要一种人文精神的培养,以及将人作为一种目的性的追求,去关怀人,从而达到一种真正的善。实践思维视域下去指引中国法治并没用试图去形成一种理论体系,也并没有去否认当下的法律理论体系,因为每一种法律理论的盛行毕竟会存在一定的历史背景,而实践思维下的法治建设正是要让我们行动起来,以一种行动思维,实践的精神去实现真正的法治。实践思维是深入事物的本性的思维方法,它关注事物的发展过程中所呈现出来的一种自身所存在的发展规律,而且对法治的实践中体现了一种人的主体性,这就是主体与客体的统一,我们在把握实践思维时一定要注重理解这种统一的存在。根据这样的思维方式结合我国当前的法学理论,我们可以看到权利本位论事实上是一种构造论的法治模式,而构造论的法治发展进路必定是向着一种法典式的方向发展,那这种思维模式下的法治建设必定会存在一种单纯的主观主义,因为法治不是仅仅靠单纯的立法和法律的移植来实现,它需要的是法治的实践者以一种内在论的视角去真正理解法治。而本土资源论确实看到了法治发展中关注本土的现实生活,因而是从中国的现实出发去考虑法治应当如何发展,这在一定意义上是符合中国法治建设的需要的,但实际上作为研究者而言他还是仅仅站在实践活动之外对法治的进场观察,而没有将自身真正融入到法治发展进程中去考察法治的发展机制,由此可见本土资源论具有片面性,单纯注重客观,而忽视了主观的在场化特征。而实践思维真正的以一种内在的视角,并以一种情景化的态度去关注法治,避免了向两极思维的发展,以一种中介化的思维方式去思考中国的法治建设。实践思维作为一种中介化的思维模式,其特点是摈弃了两极思维方式,以一种中道的态度去平衡主体与客体,能动与被动,精神与物质之间的关系,进而用中介化思维辅助与法治的实践中,避免在法治的建设中单纯的主体化和单纯的客体化,形成一种主体和客体的融合,从而实现法治追求的价值。实践思维视域下的中国法治建设,首先需要以实践辩证法作为其法治建设的哲学基础,同时要求具有人法并重的法治前提,人法并重的思想理念就是要求我们在法治的每个环节都要真正将人作为目的去对待,建立一种让人快乐,让社会安定有序的法治社会才是最终的目的。基于实践思维视域下对法治建设确立的原则,我们在改进法治建设中就应该培育公民的法治意识,让公民在尊重法律的前提下自觉的形成规则意识；把握普遍与具体的关系,在普遍正义的基础上力求一种具体的正义；同时,主体与客体的互动是在不断否定法律发展规律下实现法治；制度的改进必须在立法、执法、司法和守法四个方面有机的结合起来,推动法治的进程。实践思维下法治是一种行动,只有行动,才能最终实现法治的目标。实践思维下的法治终究要通过行动,而不是口号去完成,行动是实践法学的基本精神。我们不能否定事物前进的曲折性,越是曲折的,越是要在行动中才能克服,所以说如果没有法治的行动就不可能实现法治的理想。
[Abstract]:Practice is the unique way and state of existence of human beings. To think of the current legal problems in a practical way of thinking is to treat the state of existence and the way of existence in a rational way and in the attitude of action. The construction of the rule of law in China has gone a long way from the proposition of the slogan to the implement of the law, and the existing law is already taken. Whether the thinking mode of governance is really suitable for us and whether it really can reach the rule of law we expected is still open to discussion. With the development of human social practice, the proposition of the times with human practice as the core has been fully developed, which, of course, includes the construction of the rule of law. The perfection of the rule of law can not be separated from the practice of human beings and inseparable from action. It is only in practice that legislation, judicature, and law can be used in practice to realize the purpose of law making, and to realize the value of the law. But in the field of practical thinking, thinking about the perfection of the rule of law requires us to cultivate a practical wisdom, and this practical wisdom is not able to be established overnight, and it needs a person. The cultivation of the spirit of literature, and the pursuit of human beings as a purpose, care for people, so as to achieve a real good.
The view of practical thinking leads to the rule of law in China and does not attempt to form a theoretical system, nor does it deny the present legal theory system, because the prevalence of every legal theory will have a certain historical background, and the construction of the rule of law under practical thinking is to let us act, practice and practice. The spirit of the practice is to realize the true rule of law. Practical thinking is a way of thinking deep into the nature of things. It pays attention to the law of development that is present in the course of the development of things, and embodies a kind of human subjectivity in the practice of the rule of law. This is the unity of the subject and the object, and we are in the grasp of the practical thinking. We should pay attention to understanding the existence of this unity. According to this way of thinking, we can see that the theory of right standard is in fact a model of the rule of law in the theory of tectonics, and the development approach of the rule of law in the structure theory must be directed towards a kind of codification direction, and the construction of the rule of law under this mode of thinking must be built. There is a simple subjectivism, because the rule of law is not only realized by the transplantation of simple legislation and law. It needs the practitioner of the rule of law to truly understand the rule of law with an intrinsic perspective. And the theory of native resources does see the real life of the soil in the development of the rule of law, thus it is from the reality of China. To consider how the rule of law should develop, which is in a sense in line with the needs of the construction of the rule of law in China, but in fact, as a researcher, he is still only standing outside the practice of observing the rule of law, and does not really integrate itself into the development process of the rule of law to examine the development mechanism of the rule of law. The theory of resources is one-sided, simply pays attention to objectivity, but neglects the subjective characteristics of the presence, while practical thinking is truly focused on the rule of law with an internal perspective and a situational attitude, avoiding the development of the two polar thinking, and thinking of the construction of the rule of law in China with a mediating way of thinking.
As an intermediary thinking mode, practical thinking is characterized by abandoning the two polar thinking mode, balancing the subject and the object, the relationship between the initiative and the passivity, the spirit and the material, and in the practice of intermediary thinking assisting and the rule of law, and avoiding the simple subjectivity and simple guest in the construction of the rule of law. In order to achieve the value of the rule of law, the construction of the rule of law in China under the view of practical thinking needs to take practice dialectics as the philosophical basis for the construction of the rule of law. At the same time, it requires the premise of the rule of law with both human law and law, and the idea of human law and heavy thought is to require each of us in the rule of law. It is the ultimate goal that the link should be truly treated as the purpose, and the ultimate goal is to establish a social and orderly society that allows people to be happy and orderly. Based on the principle of establishing the rule of law under the view of practical thinking, we should cultivate citizens' consciousness of the rule of law in the construction of the rule of law and let the citizens conscientious under the premise of respect for the law. To form a sense of rule, grasp the relationship between the general and the concrete, and strive for a kind of concrete justice on the basis of universal justice; at the same time, the interaction between the subject and the object is to realize the rule of law under the constant negation of the law of law development; the improvement of the system must be organically combined in the four aspects of legislation, law enforcement, judicature and law-abiding, and promote the progress of the rule of law. Cheng.
Under practical thinking, the rule of law is a kind of action. Only action can ultimately achieve the goal of the rule of law. In practice, the rule of law must be accomplished through action, not a slogan. Action is the basic spirit of practice law. We can not deny the zigzag of the progress of things, the more folded, the more we can overcome it in action, so say as if Without the action of the rule of law, it is impossible to achieve the ideal of rule by law.
【学位授予单位】：河北经贸大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D920.0

【参考文献】