法治实践中的德性研究

发布时间：2018-01-26 02:53

本文关键词： 法治价值规范德性　出处：《中南大学》2011年博士论文　论文类型：学位论文

【摘要】：法治是一种价值活动,也是一种规范活动,法律规范是法治价值的载体,法治建设的过程,就是把法治价值转换成法律规范,再用法律规范去指导和约束人们行为以实现法治价值的过程。在这一过程中,法治主体是联结法治价值和法律规范的中介,法治主体的德性则是法治价值和法律规范在法治实践中得以顺畅转换和实现的关键因素。法律的创制、法律的适用、法律的遵守与立法活动主体、执法活动主体、司法活动主体、守法活动主体的价值取向以及道德理念密切相关。法治和德性之间这种内在的联系,意味着法治应是德性法治,没有德性的支持,法治将难以成功与维系。法治需要德性的支持,使得我们立足于法律场域时,既要关注“硬的”法律制度的事实,也要关注“软的”道德因素,即关注德性联结在法律场域中的作用。德性作为一种获得性品质,法治主体所需要的德性是在具体的法治实践活动中养成并获得的。而各法律场域是由处于不同地位、发挥着不同作用的活动主体所结成的关系网络,各活动主体相互作用,共同促进活动的完成。由于各主体在法律场域中处于不同的地位、发挥着不同的作用,因而对他们有着不同的德性要求。立法作为法治的起始环节,立法的实质是通过创制良法来把抽象的法治价值上升为具体的法律规范。立法场域要创制出良法,需要公民的立法参与,也需要立法精英的加入,公民和立法精英的德性是他们在立法活动中各自发挥其应有的地位与作用的道德保障。公民应具有参与立法所需要的德性,具体包括参与、自主、宽容。立法精英应具有创制法律制度所需要的德性,具体包括理性、公正、审慎。执法是法治的关键环节,执法的实质是通过执行法律来把立法所设立的权利义务落实为现实的权利义务,把立法所设计的静态的社会秩序落实为动态的社会秩序。执法场域主要是由行政相对人和执法人员所结成的关系网络,执法是行政相对人与执法人员合作的结果。行政相对人是执法人员必要的合作者,应具有服从、诚信、责任感、友善的德性。执法人员是公共服务者与公共管理者,应具有服务、效率、公正的德性。司法是社会正义的最后一道防线,司法的实质是通过解决纠纷来构建和谐的社会秩序。司法场域主要是由律师、法官、检察官所结成的关系网络,他们构成司法公正的三大支柱。律师通过程序的参与来维护当事人的合法权益、促进司法公正的实现,他们应具有忠诚、勤勉、正义感的德性。法官在司法活动中的作用在于对各方当事人的是非曲直居中裁决,以最终解决纠纷,维护社会的和谐,他们应具有公正、勤勉、严谨的德性。检察官是通过指控严重违反法律的人使其受到应有的惩罚及监督法律公正的适用来实现司法的公正,他们应具有忠诚、公正、清廉、严明的德性。守法是法治的基础环节,守法的实质是通过对法律的遵守来实现自由、尊严的价值及安全的社会秩序,以推进法治价值目标的实现。守法场域是由守法公民和外国人所结成的关系网络,他们的德性是法律得到普遍遵守的必要条件,只有当守法主体把外在的法律规范内化为内在需要时,法律的普遍遵守才有可能。守法公民应具有的德性主要有正义感、羞耻感、自制、勇气,外国人应具有的德性主要有尊重、对等、友爱。当各法律场域中的活动主体都按照各自的德性要求行为时,法治价值目标得以实现,法治秩序与德性秩序相统一的社会秩序得以形成。与此同时,法治主体在养成德性与践履德性的过程中,对法律与德性对于人生的意义有了进一步的认识和觉解,其人生境界也有了进一步的提升,而这种人生境界的提升又有益于法治现代化进程的推进和实现。
[Abstract]:The rule of law is a kind of value activities, is also a kind of normative activities, legal norms are the carrier of the value of the rule of law, the process of building the rule of law, is the value of the rule of law into legal norms and legal norms to guide and constrain people's behavior in order to achieve the value of the rule of law process. In this process, the rule of law is the main link between the value of the rule of law the rule of law and legal norms, the main virtue is the value of the rule of law and legal norms are the key factors to realize the smooth transition and the practice of the rule of law. The law, application of law, legal compliance subject and legislation, law enforcement activities, the judicial activities of the main body, the value orientation of law-abiding activities and moral concepts are closely related the relationship between the rule of law. The rule of law and virtue, means should be moral without virtue, rule of law, rule of law will not succeed and sustain.
The rule of law requires moral support, so we focus on the legal field, not only pay attention to "hard" legal facts, but also should pay attention to the "soft moral factors", which concerns the moral connection in the legal field. The role of virtue as a kind of quality, to virtue is the subject of the rule of law develop and get in the practice of rule of law. The specific legal field is made in different position, the network relationship plays a different role in the activities of the main form, the main activities of interaction, to jointly promote the completion of activities. Because the body is in the different position in the legal field, play different the role, thus they have different moral requirements.
The legislation as the initial link of the rule of law, legislation is the essence of the law through the creation of the abstract value of the rule of law into law. The specific legislative field to create a good law, need citizen participation in legislation, but also the need for legislation to join the elite, the elite of German citizens and legislation is the moral guarantee in their respective legislative activities the status and function of citizen participation in legislation. Should have required virtue, including participation, autonomy, tolerance. Legislation should have created the legal system of elite to virtue, including rationality, justice, prudence.
Law enforcement is the key link of the rule of law, law enforcement is the essence of law to set up through the implementation of legislative rights and obligations of the implementation of the reality of the rights and obligations of the static legislation designed to implement social order as dynamic social order. The law enforcement field is mainly the relationship network formed by the relative people of administration and law enforcement personnel, law enforcement is the administrative relative person and law enforcement cooperation results. Administrative law enforcement personnel is the necessary cooperation, should have to obey, integrity, responsibility, friendly virtue. Law enforcement officers are public service and public management, should have the service, efficiency and justice.
Justice is the last defense of social justice, justice is the essence of the dispute to construct the harmonious society. The judicial field is mainly composed of lawyers, judges, prosecutors network formed, they constitute the three pillars of justice. The lawyer through the procedure involved to safeguard the legitimate rights and interests of the parties. To promote the realization of justice, they should have a sense of loyalty, diligence, virtue. Role of the judges in the judicial activities of the parties is on the right and wrong verdict, to resolve disputes, maintaining social harmony, they should have a fair, diligent, rigorous virtue. Prosecutors accused by serious violation of law people to be punished and supervision of legal justice applicable to justice, they should be loyal, honest, impartial, strict virtue.
The law is the basis of rule of law, the law essence is through obedience to law to achieve freedom, safety value and social order dignity, promote to achieve the goal of the rule of law. The law field is the relationship network formed by law-abiding citizens and foreigners, their virtue is the law obtained the necessary conditions of universal adherence only when the law, subject to external laws into internal needs, the law generally observed is possible. Law-abiding citizens should have the virtue of a sense of justice, sense of shame, courage, self-control, foreigners should have the virtue are respected, equal, friendly.
When the law in the field of activities are in accordance with their respective requirements moral behavior, to realize the value object of rule of law, rule of law and order and moral order unified social order is formed. At the same time, the rule of law in the process of virtue and practice the main form of virtue, of law and morality for the meaning of life has been further understanding and understanding, the realm of life has also been further improved, and this is beneficial to enhancing the realm of life and the rule of law modernization and implementation.

【学位授予单位】：中南大学
【学位级别】：博士
【学位授予年份】：2011
【分类号】：D90-053

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