法律与社会控制：中国古代礼法结合的传统及当代启示
发布时间：2018-11-09 13:49
【摘要】：“通过法律的社会控制”是当今世界各国进行社会控制的基本理念,但具体到不同国家,由于不同历史传统的影响,作为社会控制主要手段的法律仍需其他手段的配合与辅助。在中国,由于受伦理思想传统的影响较大,道德对法律起着很大的辅助作用。任何制度的产生和延续,都有其特定的历史条件。中国古代传统的礼法结合的社会控制模式也自有其存在的历史合理性。通过对中国古代社会控制中礼法结合模式的产生、发展以及作用发挥机制的分析,得出如下启示:一个国家要保持社会秩序稳定,实现良好的社会控制,在完善法律制度的同时,也必须建立与社会形态相适应的社会道德规范体系;而且,只有当国家法律规范体系同社会道德规范体系两相协调时,国家法律规范才具有实施的社会基础,社会控制方能取得预期的效果。 受全球化的影响,法的规范渐显趋同化。在全球法律规则共通的发展道路上,依法治国、建立法治国家和法治社会,是各国现在或未来的社会治理模式。改革开放以后,中国也在努力营造依法治国的社会基础。由于市场经济体制和社会主义民主政治有待完善、文化的发展受传统的影响较大,而导致法与社会基础不协调。特别是法制现代化程度与人的现代化程度不具相当性,存在着制度性法律文化与观念性法律文化的冲突,从而导致法治的价值基础缺失而需进行法律信仰的培育,导致法治的人文基础薄弱而需加强公民品格的塑造。鉴于以上问题,笔者认为中国当下应采取依法治国与以德促法相结合的社会控制模式。 以德促法是指在坚持依法治国的前提下,同时加强社会主义道德规范建设、强化对国民的道德教育,以提高其道德素养、塑造其公民德性,从而培育其法律信仰、增强守法自觉性,以促进社会控制中法的具体实施效果。道德秩序下理性自律精神的培育是法治的伦理支撑。规范性的制度,包括法律,并不是单以武力强制就能实现,它必须以大多数人的自愿服从为前提。否则,制度权威和法治秩序是很难有效建立起来的。制度的运行需要有伦理秩序的支撑,法律制度的运行亦是如此。在当代中国社会,伦理秩序已不再是传统的道德秩序体系。当今的道德秩序应建立在蕴含权利、责任、自由、平等和公共精神的现代性公民伦理体系之上,现代性的公民伦理是构成公民品格的重要因素。一个社会若没有良好的公民品格,它的制度很难有效运行,故而要大力加强社会道德规范建设,培育良好的公民品格,为法治秩序提供有效的道德支撑。如此,才能达到依法治国与以德促法的结合,才能实现良好的社会控制。
[Abstract]:"Social control through law" is the basic concept of social control in various countries in the world today. However, due to the influence of different historical traditions, the law, as the main means of social control, still needs the cooperation and assistance of other means. In China, morality plays a great auxiliary role to the law because of the influence of ethical tradition. The emergence and continuation of any system has its specific historical conditions. The traditional social control mode of the combination of etiquette and law in ancient China has its own historical rationality. Based on the analysis of the emergence, development and mechanism of the combination of etiquette and law in ancient Chinese social control, the following revelations are drawn: a country should maintain social order and stability and realize good social control. While perfecting the legal system, it is also necessary to establish a system of social moral norms that is compatible with the social formation. Moreover, only when the national legal norm system and the social moral standard system are in harmony, can the national legal norms have the social basis for implementation and the social control can achieve the desired results. Influenced by globalization, the norms of law gradually converge. On the common development road of global legal rules, governing the country according to law and establishing a country ruled by law and a society ruled by law are the current or future social governance models of each country. After reform and opening up, China is also striving to build the social foundation of governing the country according to law. Because the market economy system and socialist democratic politics need to be perfected, the development of culture is greatly influenced by tradition, which leads to the disharmony between law and social foundation. Especially, the degree of modernization of legal system is not equivalent to the degree of modernization of human beings, and there exists a conflict between institutional legal culture and idealistic legal culture, which leads to the lack of the value foundation of the rule of law and the cultivation of legal belief. The humanistic foundation of rule of law is weak and the shaping of citizen's character should be strengthened. In view of the above problems, the author thinks that China should adopt the mode of social control combining the rule of law and the promotion of law by virtue. To promote law by virtue means to strengthen the construction of socialist moral standards and strengthen moral education of the people under the premise of ruling the country according to law, so as to improve their moral literacy, shape their citizens' moral character, and cultivate their legal beliefs. Strengthen the consciousness of abiding by the law, in order to promote the concrete implementation effect of law in social control. The cultivation of the spirit of rational self-discipline under the moral order is the ethical support of the rule of law. Normative system, including law, can be achieved not by force alone, but by voluntary servitude of the majority. Otherwise, the system authority and the rule of law order is very difficult to establish effectively. The operation of the system needs the support of the ethical order, and so is the operation of the legal system. In contemporary Chinese society, ethical order is no longer a traditional moral order system. The present moral order should be based on the modern civil ethics system which contains rights, responsibilities, freedoms, equality and public spirit. The modern civil ethics is the important factor that constitutes the civic character. If a society does not have good civic character, its system is difficult to operate effectively. Therefore, it is necessary to strengthen the construction of social moral standard, cultivate good civic character and provide effective moral support for the order of rule of law. Only in this way, can we achieve the combination of governing the country by law and promoting law by virtue, and realize good social control.
【学位授予单位】：淮北师范大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D920.4
本文编号：2320591
[Abstract]:"Social control through law" is the basic concept of social control in various countries in the world today. However, due to the influence of different historical traditions, the law, as the main means of social control, still needs the cooperation and assistance of other means. In China, morality plays a great auxiliary role to the law because of the influence of ethical tradition. The emergence and continuation of any system has its specific historical conditions. The traditional social control mode of the combination of etiquette and law in ancient China has its own historical rationality. Based on the analysis of the emergence, development and mechanism of the combination of etiquette and law in ancient Chinese social control, the following revelations are drawn: a country should maintain social order and stability and realize good social control. While perfecting the legal system, it is also necessary to establish a system of social moral norms that is compatible with the social formation. Moreover, only when the national legal norm system and the social moral standard system are in harmony, can the national legal norms have the social basis for implementation and the social control can achieve the desired results. Influenced by globalization, the norms of law gradually converge. On the common development road of global legal rules, governing the country according to law and establishing a country ruled by law and a society ruled by law are the current or future social governance models of each country. After reform and opening up, China is also striving to build the social foundation of governing the country according to law. Because the market economy system and socialist democratic politics need to be perfected, the development of culture is greatly influenced by tradition, which leads to the disharmony between law and social foundation. Especially, the degree of modernization of legal system is not equivalent to the degree of modernization of human beings, and there exists a conflict between institutional legal culture and idealistic legal culture, which leads to the lack of the value foundation of the rule of law and the cultivation of legal belief. The humanistic foundation of rule of law is weak and the shaping of citizen's character should be strengthened. In view of the above problems, the author thinks that China should adopt the mode of social control combining the rule of law and the promotion of law by virtue. To promote law by virtue means to strengthen the construction of socialist moral standards and strengthen moral education of the people under the premise of ruling the country according to law, so as to improve their moral literacy, shape their citizens' moral character, and cultivate their legal beliefs. Strengthen the consciousness of abiding by the law, in order to promote the concrete implementation effect of law in social control. The cultivation of the spirit of rational self-discipline under the moral order is the ethical support of the rule of law. Normative system, including law, can be achieved not by force alone, but by voluntary servitude of the majority. Otherwise, the system authority and the rule of law order is very difficult to establish effectively. The operation of the system needs the support of the ethical order, and so is the operation of the legal system. In contemporary Chinese society, ethical order is no longer a traditional moral order system. The present moral order should be based on the modern civil ethics system which contains rights, responsibilities, freedoms, equality and public spirit. The modern civil ethics is the important factor that constitutes the civic character. If a society does not have good civic character, its system is difficult to operate effectively. Therefore, it is necessary to strengthen the construction of social moral standard, cultivate good civic character and provide effective moral support for the order of rule of law. Only in this way, can we achieve the combination of governing the country by law and promoting law by virtue, and realize good social control.
【学位授予单位】：淮北师范大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D920.4
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相关期刊论文 前2条
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2 潘伟杰,王岩;全球化进程与中国法律发展的价值选择[J];社会科学;2002年09期
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