孝治的终结与法治的兴起——从《老年人权益保障法》第17条切入
发布时间：2018-10-15 15:12
【摘要】：孝治是传统中国家国同构和圣贤政治的产物。随着中国社会从圣贤政治到民主政治、从家国同构到家国两分、从"家庭人"到"社会人"的转变,传统的孝治也逐渐被法治所取代。修订后的《老年人权益保障法》第17条既体现了法治的精义,又标志着法治在当代中国的兴起。这是因为,法治是一个渐进的过程,最容易接受法律治理的领域是一些与个人身份无关的领域,家庭关系是法治最难攻克的堡垒。修订后的《老年人权益保障法》第17条并非"孝道入法",它把传统的父母与子女之间的血缘性的伦理关系变成了平等主体之间的法律关系。在这个条款中,传统的需要尽孝的"父母"已经不复存在,已经被替换成为没有任何伦理指向的"老年人"。传统的子女则被替换成"家庭成员"或"赡养人"。这样的替换从制度上抹去了传统的孝道,同时也在法律上终结了传统的孝治。与此同时,随着家庭内部关系完全纳入到法律调整的领域,表明家庭这个最难被法治攻克的领域,已经成为法治的辖区。因此,《老年人权益保障法》第17条具有标本意义:它既是孝治终结的标本,亦是法治兴起的标本。
[Abstract]:Filial piety is the product of traditional national isomorphism and sage politics. With the transformation of Chinese society from saints politics to democracy, from homogeneity of family to family and from "family" to "social person", the traditional filial piety is gradually replaced by the rule of law. Article 17 of the revised Law on the Protection of the Rights and interests of the elderly not only embodies the essence of the rule of law, but also marks the rise of the rule of law in contemporary China. This is because the rule of law is a gradual process, the most easily accepted areas of legal governance are some areas independent of personal identity, family relations are the most difficult fortress of the rule of law. Article 17 of the revised Law on the Protection of the Rights and interests of the elderly is not "filial piety into law", it turns the traditional ethical relationship between parents and children into the legal relationship between equal subjects. In this provision, traditional "parents" who need filial piety no longer exist and have been replaced by "old people" without any ethical point. Traditional children are replaced by "family members" or "dependants". This replacement erased the traditional filial piety from the system, but also ended the traditional filial piety in the law. At the same time, with the family relations fully incorporated into the field of legal adjustment, it shows that the family, which is the most difficult area to be conquered by the rule of law, has become the jurisdiction of the rule of law. Therefore, Article 17 of the Law on the Protection of the Rights and interests of the elderly has the significance of specimen: it is not only the specimen of the end of filial piety, but also the specimen of the rise of rule of law.
【作者单位】： 首都经济贸易大学法学院;
【分类号】：D923.8
，
本文编号：2272935
[Abstract]:Filial piety is the product of traditional national isomorphism and sage politics. With the transformation of Chinese society from saints politics to democracy, from homogeneity of family to family and from "family" to "social person", the traditional filial piety is gradually replaced by the rule of law. Article 17 of the revised Law on the Protection of the Rights and interests of the elderly not only embodies the essence of the rule of law, but also marks the rise of the rule of law in contemporary China. This is because the rule of law is a gradual process, the most easily accepted areas of legal governance are some areas independent of personal identity, family relations are the most difficult fortress of the rule of law. Article 17 of the revised Law on the Protection of the Rights and interests of the elderly is not "filial piety into law", it turns the traditional ethical relationship between parents and children into the legal relationship between equal subjects. In this provision, traditional "parents" who need filial piety no longer exist and have been replaced by "old people" without any ethical point. Traditional children are replaced by "family members" or "dependants". This replacement erased the traditional filial piety from the system, but also ended the traditional filial piety in the law. At the same time, with the family relations fully incorporated into the field of legal adjustment, it shows that the family, which is the most difficult area to be conquered by the rule of law, has become the jurisdiction of the rule of law. Therefore, Article 17 of the Law on the Protection of the Rights and interests of the elderly has the significance of specimen: it is not only the specimen of the end of filial piety, but also the specimen of the rise of rule of law.
【作者单位】： 首都经济贸易大学法学院;
【分类号】：D923.8
，
本文编号：2272935
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