法治的主观向度

发布时间：2018-08-17 10:37

【摘要】：法治作为人类社会的治理模式,具体内容是特定社会中的人们在特定情形下基于自己的社会生产、生活实践而自发生成或者主动选择的。其一,法治作为治理模式本身不具有客观标准类型,迄今为止,法治始终是一个国内法问题具有地域性、同时,一民族、一国的法治具体内容并不是一层不变的,而毋宁是一个充满变数的进程,具体说来,其具体内容和运行机制受传统文化、经济制度、政治制度等的影响。其二,法治作为治理模式是制度设计的理性尝试,其内容是人类在总结社会治理经验上对对社会治理模式的制度设计,其目的在于对社会秩序的理性建构。其三,法治作为治理模式是人类社会的理想状态,法治建基于对人和人类社会的理论假设之上,其运行需要理想化的人和社会环境,追求的是人类的理想社会。法治作为人类实践的产物,其深刻地根源于人类自我实现的需要。第一,法治的基础是人对自我价值认识。法治既是人类主体性澄明的结果,也是维护人类主体性的客观需要,具体说来,法治深刻根源于人类的自由属性和社会属性。第二,法治的推行实现是人主观行为的结果。其中,经济行为是法治推行实现的根本推动力,政治行为是法治推行实现的直接推动力,日常行为的是法治推行实现的具体推动力。虽然本质上法治是人类实践的产物,是人类本性不断现实化和对象化的结果,但是和一切人类创造的文明形式一样,法治一旦从人们的头脑里实现出来,便具有了客观的性质。故,法治从一开始就同时作为人们的感知对象而存在。首先,法治是由人主观体验感知的,同其他一切对象一样,法治是人类的体验对象,认识对象,评价对象。其次,法治是通过古今之间、地域之间、现实与理想之间互相比较来体现的。总之,法治的主观维度根源于其作为人间秩序本质上是人自觉或者不自觉的创造物,故,同其他一切人类的创造物一样,法治从头到脚都带有人类的主观色彩。从另一个角度讲,正是因为法治具有主观向度是人作为法治的主体地位的根本性确证。
[Abstract]:As the governance mode of human society, the specific content of the rule of law is the spontaneous production or active choice of the people in the specific society based on their own social production and life practice under certain circumstances. First, the rule of law as a governance model itself does not have an objective standard type. Up to now, the rule of law has always been a domestic law problem with a regional nature, at the same time, the specific content of a nation, a country's rule of law is not a layer of change. But it is a process full of variables, specifically, its concrete content and operating mechanism are influenced by traditional culture, economic system, political system and so on. Second, the rule of law as a governance model is a rational attempt of system design, and its content is the system design of social governance model in summing up the experience of social governance, the purpose of which is to rationally construct the social order. Thirdly, the rule of law is the ideal state of human society as the governance mode. The rule of law is based on the theoretical assumptions of human and human society, and its operation needs idealized human and social environment, pursuing the ideal society of human beings. As the product of human practice, the rule of law is rooted in the need of human self-realization. First, the basis of the rule of law is the understanding of self-worth. The rule of law is not only the result of the clarification of human subjectivity, but also the objective need to maintain human subjectivity. Specifically, the rule of law is deeply rooted in the free and social attributes of human beings. Second, the implementation of the rule of law is the result of human subjective behavior. Among them, economic behavior is the fundamental driving force for the implementation of the rule of law, political behavior is the direct driving force for the implementation of the rule of law, and daily behavior is the specific driving force for the implementation of the rule of law. Although the rule of law is essentially the product of human practice and the result of the continuous realization and objectification of human nature, the rule of law, like all forms of civilization created by human beings, once realized from people's minds, has an objective nature. Therefore, the rule of law from the beginning as people's perception of the object and exist at the same time. First of all, the rule of law is perceived by human subjective experience. Like all other objects, the rule of law is the object of human experience, the object of cognition and the object of evaluation. Secondly, the rule of law is reflected by comparison between ancient and modern, between regions, between reality and ideal. In a word, the subjective dimension of the rule of law originates from the fact that the human order is essentially a human being's conscious or unconsciously created thing, so, like all other human creations, the rule of law has the subjective color of human being from head to toe. From another point of view, it is because the subjective dimension of the rule of law is the fundamental confirmation of the human being as the subject of the rule of law.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D90

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