论法治中国的社会结构性羁束及出路

发布时间：2018-10-08 07:32

【摘要】：当下我国的法治实践存在立法缺少博弈、法律适用屡被民众规避的现象,原因与传统中国以家庭和伦理为基础的差序结构有关,其一方面导致社会团体缺乏组织力,无法为立法注入多方力量博弈的基础,另一方面致使法律以差异而非平等为其核心精神,同一规则难以被一体遵守。实现法治中国需要破除传统社会结构性的羁束,一是要坚持发展市场经济促进社会结构转型,通过吸纳公民参与立法、吸收情理入法以及认可多元化规则等路径并结合公民训练的方式以养成民众遵守规则的习惯,实现形式法治;二是要通过约束权力行使、提升社会团体的组织力和培育第三方力量等路径形成立法的相互制衡,为良法之治创造根基,达成实质法治。
[Abstract]:In the current practice of rule of law in our country, there is a lack of game in legislation and the phenomenon that the application of law is evaded by the public. The reason is related to the traditional Chinese differential order structure based on family and ethics, which on the one hand leads to the lack of organizational power of social groups. It is impossible to inject the basis of multi-force game into the legislation, on the other hand, it is difficult to abide by the same rule because the law takes difference rather than equality as its core spirit. To achieve the rule of law in China, we need to break down the structural constraints of the traditional society. First, we must persist in developing the market economy to promote the transformation of the social structure, by involving citizens in the legislation. We should absorb the rational approach and recognize the pluralistic rules, and combine the way of citizen training in order to develop the habit of the people to abide by the rules, and to realize the formal rule of law; the second is to exercise the power by restricting the exercise of power. In order to create the foundation for the governance of good law and to achieve the substantial rule of law, the ways of enhancing the organization of social organizations and cultivating third party forces form the mutual checks and balances of legislation.
【作者单位】：安庆师范大学法学院;
【分类号】：D90-052

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