论我国习惯法在法治建设中的价值
发布时间：2018-07-24 16:39
【摘要】：我国的法治秩序的建构是一项系统工程,它涉及到社会生活的各个方面。国家法秩序和习惯法秩序是法治秩序的重要组成部分。因为法是多元的,从而法治实践的规范资源也是多元的,既有国家制定法,也有习惯法。通过对习惯法和国家法以及二者之间关系的研究似乎更能让我们清晰地认识到法治建设的梗阻问题,进而主张法治进程中要实现国家法和习惯法的对接与沟通,恰当地发掘习惯法的价值。这是本文要探讨的问题和意义之所在。 要从习惯法中发掘其价值就必须先对习惯法有一个清醒的认识。习惯法的概念界定一直是学界讨论的话题,本文站在法律多元的语境下,摒弃了传统法学的一元法律观,就法做出了一个更广泛意义上的解释,法是一系列规则体系。这样习惯法的概念才可能得以提出,习惯法自身的特征使得其与习惯、国家法区别开来。作为原生规则的习惯法和作为创生规则的国家法是并存的,它们之间存在矛盾冲突,但也存在互补和融合。在当下,我国习惯法具有双重属性,它既是特定社会组织社会区域秩序的维护者,又是法治秩序支撑者。 研究习惯法的意义不仅在于向人们展示习惯法这一民族文化的瑰宝,更在于给我国的法治建设提供一个可行的借鉴和指引。我国法治建设应该走怎样的道路一直是法学界讨论的重要课题。一种观点是“自发秩序道路”或称“自主型法治道路”；另一种是“法律移植道路”或者“现代化道路”。然而两种道路的局限性让我们不得不重新审视我国法治建设的实现途径。由于我国的特殊国情以及自身的历史原因和现实原因,两种道路的结合成为我国的法治实践的必然选择。在这种混合道路中,法律移植所取得的成就是功不可没的,但是“本土资源”的潜力也是有待进一步开发。其在国家法制定、司法实践、守法心理的塑造以及社会治理方面的价值对为法治建设提供了良好的社会环境。
[Abstract]:The construction of legal order in China is a systematic project, which involves all aspects of social life. The order of state law and customary law is an important part of the order of rule of law. Because the law is pluralistic, so the normative resources of the practice of rule of law are pluralistic, both the state law and customary law. Through the study of customary law and national law and the relationship between them, it seems that we can clearly understand the obstruction of the construction of the rule of law, and then advocate that the connection and communication between national law and customary law should be realized in the process of rule of law. Properly excavate the value of customary law. This is the problem and significance of this paper. In order to discover its value from customary law, we must have a clear understanding of customary law. The definition of the concept of customary law has always been a topic of discussion in academic circles. In the context of legal pluralism, this article abandoned the monistic legal view of traditional jurisprudence, and made a more extensive interpretation of law, which is a series of rules system. In this way, the concept of customary law can be put forward, and the characteristics of customary law make it different from custom and national law. The customary law as the primary rule and the national law as the creation rule coexist, and there are contradictions and conflicts between them, but there is also complementarity and integration. At present, the customary law of our country has dual attributes, it is not only the maintainer of the social regional order of the specific social organization, but also the maintainer of the order of the rule of law. The significance of studying customary law is not only to show people that customary law is the treasure of national culture, but also to provide a feasible reference and guidance for the construction of rule of law in our country. What kind of road should be taken in the construction of the rule of law in our country has always been an important topic for discussion in the field of law. One view is "the road of spontaneous order" or "the road of independent rule of law", the other is "the road of law transplantation" or "road of modernization". However, the limitations of the two ways make us have to re-examine the ways to achieve the construction of the rule of law in our country. Because of the special national conditions of our country and its own historical and realistic reasons, the combination of the two ways has become the inevitable choice of our country's practice of ruling by law. In this mixed road, the achievements of legal transplantation are indispensable, but the potential of "local resources" needs to be further developed. Its value in the establishment of national law, judicial practice, law-abiding psychology and social governance provides a good social environment for the construction of the rule of law.
【学位授予单位】：湘潭大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D920.0
本文编号：2141992
[Abstract]:The construction of legal order in China is a systematic project, which involves all aspects of social life. The order of state law and customary law is an important part of the order of rule of law. Because the law is pluralistic, so the normative resources of the practice of rule of law are pluralistic, both the state law and customary law. Through the study of customary law and national law and the relationship between them, it seems that we can clearly understand the obstruction of the construction of the rule of law, and then advocate that the connection and communication between national law and customary law should be realized in the process of rule of law. Properly excavate the value of customary law. This is the problem and significance of this paper. In order to discover its value from customary law, we must have a clear understanding of customary law. The definition of the concept of customary law has always been a topic of discussion in academic circles. In the context of legal pluralism, this article abandoned the monistic legal view of traditional jurisprudence, and made a more extensive interpretation of law, which is a series of rules system. In this way, the concept of customary law can be put forward, and the characteristics of customary law make it different from custom and national law. The customary law as the primary rule and the national law as the creation rule coexist, and there are contradictions and conflicts between them, but there is also complementarity and integration. At present, the customary law of our country has dual attributes, it is not only the maintainer of the social regional order of the specific social organization, but also the maintainer of the order of the rule of law. The significance of studying customary law is not only to show people that customary law is the treasure of national culture, but also to provide a feasible reference and guidance for the construction of rule of law in our country. What kind of road should be taken in the construction of the rule of law in our country has always been an important topic for discussion in the field of law. One view is "the road of spontaneous order" or "the road of independent rule of law", the other is "the road of law transplantation" or "road of modernization". However, the limitations of the two ways make us have to re-examine the ways to achieve the construction of the rule of law in our country. Because of the special national conditions of our country and its own historical and realistic reasons, the combination of the two ways has become the inevitable choice of our country's practice of ruling by law. In this mixed road, the achievements of legal transplantation are indispensable, but the potential of "local resources" needs to be further developed. Its value in the establishment of national law, judicial practice, law-abiding psychology and social governance provides a good social environment for the construction of the rule of law.
【学位授予单位】：湘潭大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D920.0
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