论民主制度中公民不服从的必要性与作用
发布时间：2018-08-12 13:47
【摘要】：遵守法律是民主社会法治的基础,遵守法律是公民应尽的义务。但是纵观历史,民主制度中个人权利遭到侵犯的案例屡屡发生,“多数人统治”下的正义也并非完全正义。个人常常感到无助绝望,听从大多数人的意愿。公民不服从这一行为也是一般公民制止民主制度中大多数人意愿的手段。公民不服从行为通常能够使持异议者的议题在法庭上受到公开审判,这也正是梭罗、罗莎·帕克斯、马丁·路德·金等人的意图。同时,公民的权利这一点在为公民不服从论证中也具有一定的意义。公民不服从这个术语最早是亨利·大卫·梭罗提出的。针对这一问题展开的讨论主要集中在这几个问题上：公民不服从行为具有什么特征?在什么情况下公民不服从的行为能够得到论证?法律对公民不服从参与者应该如何做出回应?本文试图通过彻底阐述公民不服从的特征,并将其区别于一般违法行为和其他抗议行为,通过反抗者采取的方式和可能导致的后果以及这一行为的动机来论证公民不服从理论。文章分为五个章节,第一章对公民不服从做了概念分析,除了论述公开性、违法性、非暴力性之外,对于另外两个特点凭良心办事以及沟通性都进行了详细论述。一个人如果出于良心违反法律,典型的特征是既具有前瞻性又具有后顾性——不仅寻找表达他对特定法律或者政策的反对或者谴责,而且也把公众的注意力吸引到这一特定的议题上,从而推动法律或者政策方面的改变。同时将公民不服从与一般违法行为和其他抗议形式区分开来。第二章对其作为一种特殊违法行为的合法性从行动方式和行动动机进行了论证,论证了公民不服从的合法性意味着公民在一些条件限定下有权利参与公民不服从运动。第三章对公民是否有权利采取公民不服从行为进行了限定,并且对公民不服从的惩罚展开了论述。为了实现威慑目的可以采取任何惩罚方式,不论惩罚是从轻或者过重,或者是根据经验按照一般违法行为惩罚。第四章论述了民主制度不可避免的缺陷：由于民主制度的基本特点是多数人统治,公民不服从者则是少数人让多数人意识到他们呼吁的议题,并希望得到多数人的支持。即使在民主法治社会中存在合法手段以改变非正义,但是法律途径耗时太长,甚至在实践中受到阻碍。在对抗非正义的战斗中耐心助长非正义,公民不服从的直接性、非暴力性以及自愿接受惩罚,既能阻止非正义又能表达对法律的忠诚。第五章说明了公民不服从的作用,其在历史上、法律上造成的影响以及在现代民主制度政治生活中日益扩大的作用。
[Abstract]:To abide by the law is the basis of the rule of law in a democratic society, and it is the duty of citizens to abide by the law. But throughout history, individual rights have been violated frequently in democracy, and justice under the rule of the majority is not entirely just. Individuals often feel helpless and desperate and listen to the wishes of the majority. Citizen disobedience from this behavior is also a means for ordinary citizens to stop the will of the majority in a democracy. Civil disobedience usually allows dissidents to be tried in public in court, which is what Thoreau, Rosa Parks, Martin Luther King and others intended. At the same time, the citizen's right also has certain significance in disobeying the citizen from the argument. The term was first proposed by Henry David Thoreau. The discussion focused on these questions: what are the characteristics of citizens' disobedient behavior? Under what circumstances can civil disobedience be demonstrated? How should the law react to citizens' disobedience from participants? This paper attempts to demonstrate the theory of civil disobedience by thoroughly expounding the characteristics of citizens' disobedience and differentiating it from general illegal acts and other protest acts, by means of the way and possible consequences adopted by the rebels, and by the motives of this behavior. The article is divided into five chapters. The first chapter makes a conceptual analysis of citizen disobedience. In addition to the public, illegal, non-violent, the other two characteristics of conscience and communication are discussed in detail. If a person violates the law out of conscience, the typical characteristic is that he is both forward-looking and considerate-not only seeking to express his opposition to or condemnation of a particular law or policy, It also draws public attention to this particular issue, prompting changes in law or policy. It also distinguishes civil disobedience from ordinary violations and other forms of protest. The second chapter demonstrates its legality as a special illegal act from the mode of action and the motive of action, and demonstrates that the legitimacy of citizen's disobedience means that the citizen has the right to participate in the civil disobedience movement under some conditions. The third chapter defines whether citizens have the right to take civil disobedience behavior, and discusses the punishment of citizen disobedience. Any form of punishment may be taken for the purpose of deterrence, whether light or excessive, or in the light of experience in accordance with a general offence. The fourth chapter discusses the inevitable defects of democracy: because the basic characteristics of democracy is the rule of the majority, the citizen disobeying is the minority who makes the majority aware of the issue they call for, and hopes to be supported by the majority. Even if there are legal means to change injustice in a democratic society under the rule of law, the legal approach takes too long and is even blocked in practice. Patience fosters injustice in the battle against injustice, the directness, non-violence, and voluntary punishment of citizens' disobedience can both prevent injustice and express loyalty to the law. The fifth chapter explains the function of citizen disobedience, its influence in history and law, and its expanding role in the political life of modern democratic system.
【学位授予单位】：南京大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D035
本文编号：2179239
[Abstract]:To abide by the law is the basis of the rule of law in a democratic society, and it is the duty of citizens to abide by the law. But throughout history, individual rights have been violated frequently in democracy, and justice under the rule of the majority is not entirely just. Individuals often feel helpless and desperate and listen to the wishes of the majority. Citizen disobedience from this behavior is also a means for ordinary citizens to stop the will of the majority in a democracy. Civil disobedience usually allows dissidents to be tried in public in court, which is what Thoreau, Rosa Parks, Martin Luther King and others intended. At the same time, the citizen's right also has certain significance in disobeying the citizen from the argument. The term was first proposed by Henry David Thoreau. The discussion focused on these questions: what are the characteristics of citizens' disobedient behavior? Under what circumstances can civil disobedience be demonstrated? How should the law react to citizens' disobedience from participants? This paper attempts to demonstrate the theory of civil disobedience by thoroughly expounding the characteristics of citizens' disobedience and differentiating it from general illegal acts and other protest acts, by means of the way and possible consequences adopted by the rebels, and by the motives of this behavior. The article is divided into five chapters. The first chapter makes a conceptual analysis of citizen disobedience. In addition to the public, illegal, non-violent, the other two characteristics of conscience and communication are discussed in detail. If a person violates the law out of conscience, the typical characteristic is that he is both forward-looking and considerate-not only seeking to express his opposition to or condemnation of a particular law or policy, It also draws public attention to this particular issue, prompting changes in law or policy. It also distinguishes civil disobedience from ordinary violations and other forms of protest. The second chapter demonstrates its legality as a special illegal act from the mode of action and the motive of action, and demonstrates that the legitimacy of citizen's disobedience means that the citizen has the right to participate in the civil disobedience movement under some conditions. The third chapter defines whether citizens have the right to take civil disobedience behavior, and discusses the punishment of citizen disobedience. Any form of punishment may be taken for the purpose of deterrence, whether light or excessive, or in the light of experience in accordance with a general offence. The fourth chapter discusses the inevitable defects of democracy: because the basic characteristics of democracy is the rule of the majority, the citizen disobeying is the minority who makes the majority aware of the issue they call for, and hopes to be supported by the majority. Even if there are legal means to change injustice in a democratic society under the rule of law, the legal approach takes too long and is even blocked in practice. Patience fosters injustice in the battle against injustice, the directness, non-violence, and voluntary punishment of citizens' disobedience can both prevent injustice and express loyalty to the law. The fifth chapter explains the function of citizen disobedience, its influence in history and law, and its expanding role in the political life of modern democratic system.
【学位授予单位】：南京大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D035
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