论中国传统法律文化对法治的积极影响
发布时间：2019-04-11 12:53
【摘要】：中华文化是中华民族值得自豪的宝贵精神财富，作为中华文化一部分的中国传统法律文化是历史遗留下来了的丰富宝贵遗产。对中国传统法律文化的精髓思想成果进行系统、深入的探索，透过历史现象，探究中国传统法律的内涵，以史为鉴，，在法治现代化建设中传承中国传统法律文化精粹，对当代中国法治建设具有很大的现实意义和不可替代的借鉴作用。没有民族精神的健强，没有本民族优秀传统文化的真正的复兴，国家强盛、社会和谐、经济繁荣一系列目标是不能达到的。要建设既符合中国传统文化精神又不违背中国法治现代化价值要求的法律制度，就必须做到会通古今中西，改进制度，继承优良的传统法律文化，并有选择的借鉴、吸收国外的优秀法律成果。 在如何进行法治现代化建设的问题上，主张全面“西化”的，把中国传统法律文化看作是障碍；主张“本土化”的，则认为“西化”不符合中国国情，没有其生长的土壤。通过对中国传统法律文化的深入研究，本文认为：中、西并非“水火不容”的关系，而是可以“兼收并蓄”的。从传统文化的角度看，超越时空的界限，去探究文化深处的特质，并对中国传统文化的“道法自然”、“天人合一”、“和而不同”、“天下为公”等主要特征进行分析，证明中国传统文化的核心价值是理性的、合道的、极富生命力的。从人文的角度看，西方的法治观念有许多根本价值追求与中国传统文化的内容“暗合”，这不是简单的巧合，而是文化的“契合”。全世界各民族所追求的最终目标都是人类本身的福祉，所以，全球文化虽然多样化，目标却是一致的。同理，无论法治的模式如何多样，其目的也都是追求“良法良治”，追求文明和先进是当前中西法律文化交流的理由和目标。 在没有出现普适的法治模式的前提下，中国法治之路必须注重传统法律文化影响的研究和实践。中国当下的法治实践应贯彻吸收人类一切先进文化的原则，首先是吸收传统法律文化精粹，同时也包括西方法律文化在内的其它法律文化。从影响程度来看，中国传统法律文化对当下中国法治建设的影响应当是内在的、主体性的，甚至是根本的，西方法律文化的影响则是外在的、客体性的和具体的。从中国传统文化兼容性特征来讲，传统法律文化不但不是法治现代化的阻力，而且还是能溶解西方法律文化优秀成果的混合动力，在为法治现代化建设服务的同时，传统法律文化也必然能实现自身的现代化。
[Abstract]:Chinese culture is the precious spiritual wealth of the Chinese nation. As a part of Chinese culture, Chinese traditional legal culture is a rich and valuable legacy left over from history. This paper makes a systematic and in-depth exploration of the essence of Chinese traditional legal culture, explores the connotation of Chinese traditional law through historical phenomena, and inherits the essence of Chinese traditional legal culture in the modernization of the rule of law by taking history as a lesson. It is of great practical significance and irreplaceable reference to the construction of rule of law in contemporary China. Without a strong national spirit and a true revival of their outstanding traditional culture, the country is strong and prosperous, social harmony and economic prosperity are a series of goals that cannot be achieved. In order to build a legal system that is in line with the spirit of Chinese traditional culture and does not violate the value requirements of the modernization of China's rule of law, it is necessary to improve the system, inherit the fine traditional legal culture, and use for reference selectively. Absorb excellent foreign legal achievements. On the question of how to carry out the modernization of the rule of law, those who advocate "westernization" in an all-round way, regard Chinese traditional legal culture as an obstacle, and those who advocate "localization" think that "westernization" does not accord with China's national conditions and has no soil for its growth. Through an in-depth study of Chinese traditional legal culture, this paper holds that: China, the West is not the relationship between water and fire, but can be "inclusive". From the point of view of traditional culture, go beyond the boundaries of time and space to explore the characteristics of deep culture, and analyze the main characteristics of Chinese traditional culture, such as "Tao, law, nature", "unity of nature and man", "harmony but difference", "the world is common to people", and so on. It is proved that the core value of Chinese traditional culture is rational, reasonable and full of vitality. From the humanistic point of view, the western concept of rule of law has a lot of fundamental values in pursuit of the content of Chinese traditional culture "implicit coincidence", this is not a simple coincidence, but a "fit" of culture. The ultimate goal pursued by all peoples around the world is the well-being of mankind itself, so, while global cultures are diverse, their goals are consistent. Similarly, no matter how diverse the modes of the rule of law are, the aim is to pursue "good law and good governance", and the pursuit of civilization and advanced is the reason and goal for the exchange of law and culture between China and the West at present. In the absence of a universal model of rule of law, the road to rule of law in China must pay attention to the study and practice of the influence of traditional legal culture. China's current practice of rule of law should carry out the principle of absorbing all advanced human cultures, first of all, to absorb the essence of traditional legal culture, but also to include other legal cultures, including western legal culture. From the perspective of the influence degree, the influence of Chinese traditional legal culture on the construction of rule of law in China should be internal, subjective and even fundamental, while the influence of western legal culture is external, objective and concrete. From the compatibility characteristics of Chinese traditional culture, traditional legal culture is not only not a resistance to the modernization of the rule of law, but also a hybrid power that can dissolve the outstanding achievements of western legal culture and serve the modernization of the rule of law at the same time. The traditional legal culture is bound to realize its own modernization.
【学位授予单位】：沈阳师范大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D909.2
本文编号：2456419
[Abstract]:Chinese culture is the precious spiritual wealth of the Chinese nation. As a part of Chinese culture, Chinese traditional legal culture is a rich and valuable legacy left over from history. This paper makes a systematic and in-depth exploration of the essence of Chinese traditional legal culture, explores the connotation of Chinese traditional law through historical phenomena, and inherits the essence of Chinese traditional legal culture in the modernization of the rule of law by taking history as a lesson. It is of great practical significance and irreplaceable reference to the construction of rule of law in contemporary China. Without a strong national spirit and a true revival of their outstanding traditional culture, the country is strong and prosperous, social harmony and economic prosperity are a series of goals that cannot be achieved. In order to build a legal system that is in line with the spirit of Chinese traditional culture and does not violate the value requirements of the modernization of China's rule of law, it is necessary to improve the system, inherit the fine traditional legal culture, and use for reference selectively. Absorb excellent foreign legal achievements. On the question of how to carry out the modernization of the rule of law, those who advocate "westernization" in an all-round way, regard Chinese traditional legal culture as an obstacle, and those who advocate "localization" think that "westernization" does not accord with China's national conditions and has no soil for its growth. Through an in-depth study of Chinese traditional legal culture, this paper holds that: China, the West is not the relationship between water and fire, but can be "inclusive". From the point of view of traditional culture, go beyond the boundaries of time and space to explore the characteristics of deep culture, and analyze the main characteristics of Chinese traditional culture, such as "Tao, law, nature", "unity of nature and man", "harmony but difference", "the world is common to people", and so on. It is proved that the core value of Chinese traditional culture is rational, reasonable and full of vitality. From the humanistic point of view, the western concept of rule of law has a lot of fundamental values in pursuit of the content of Chinese traditional culture "implicit coincidence", this is not a simple coincidence, but a "fit" of culture. The ultimate goal pursued by all peoples around the world is the well-being of mankind itself, so, while global cultures are diverse, their goals are consistent. Similarly, no matter how diverse the modes of the rule of law are, the aim is to pursue "good law and good governance", and the pursuit of civilization and advanced is the reason and goal for the exchange of law and culture between China and the West at present. In the absence of a universal model of rule of law, the road to rule of law in China must pay attention to the study and practice of the influence of traditional legal culture. China's current practice of rule of law should carry out the principle of absorbing all advanced human cultures, first of all, to absorb the essence of traditional legal culture, but also to include other legal cultures, including western legal culture. From the perspective of the influence degree, the influence of Chinese traditional legal culture on the construction of rule of law in China should be internal, subjective and even fundamental, while the influence of western legal culture is external, objective and concrete. From the compatibility characteristics of Chinese traditional culture, traditional legal culture is not only not a resistance to the modernization of the rule of law, but also a hybrid power that can dissolve the outstanding achievements of western legal culture and serve the modernization of the rule of law at the same time. The traditional legal culture is bound to realize its own modernization.
【学位授予单位】：沈阳师范大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D909.2
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