中国传统文化中的“德法之辩”研究
发布时间：2018-08-23 21:24
【摘要】：“德法之辩”是激荡于中国传统社会之中一种重要的文化现象,其所透视出的则是中国传统社会在制度构建、守法意识的培育以及在国家治理模式上的选择与坚守。历史并不是僵死的过去,而是现实发展的原动力。因此,贯穿于中国传统社会始终的“德法之辩”以强大的历史惯性力量承接过去,启迪现在,谋划未来。所以,在当下我们建设社会主义法治国家的征程上,同样需要直面它。由此,通过探讨它所吸纳和凝练激荡于中国传统社会几千年的道德与法律关系问题集群所形成的基本问题域,便具有了理论的研究空间与实践推演之动力与指向。为此,论文拟安排以下主要内容:首先,文化模式为“德法之辩”的方向选择与价值追求提供了必要的文化要素支撑与导向。因为“德法之辩”的产生、拓展与深化总是在一定的文化背景和思想环境下进行的。所以,无论是从命题形而下的层面来爬梳具体的国家治理模式和制度体系构建,还是从形而上的层面来阐释和反思命题中的本体论意蕴,均不可避免地需要将它所依存的文化背景内含、文化要素以及文化特性一一地呈现,唯此,方可为其下的各问题探讨成就必要的文化维度与场景。其次,在宏观层面上,通过对中国传统文化中“德法之辩”历史进程与脉络的梳理,旨在透视在既定的文化模式下的道德与法律关系背后的文化特质,以期凝练二者关系“变”与“不变”进程中的核心要素、历史动因与价值主题,从而为其他问题的展开阐述奠定基本的理论基础。再次,在道德与法律关系的历史流变之进程中,制度性构建则是“德法之辩”的应有之义。中国传统社会借助于“道德法律化”与“法律道德化”两条路径,在行为与思想内外两个层面上为社会与国家铸就了由儒家伦理思想所主导的法律制度以及政治权力合法性规则,从而将道德与法律二者之间的关系转换为在具体制度内容上的融合与取舍。以此来呈现的是,在特定的社会思想意识主导下“德法之辩”在形而下层面上的制度内容之特征及其必然性模式。最后,在“德法之辩”命题之中,通过“道德法律化”与“法律道德化”所形成的社会秩序控制系统必然需要预设和构造一个终极性的价值本源与主宰,拟制一种终极意义上的裁判性权威来统摄并预定其价值方向。无此,则无论如何完美自洽的宗教崇拜、道德自律以及法律强制等制度设计都是一种虚像。由特定的文化模式所成就的“本天立人”的社会价值建构模式则是沟通“虚像与客观”、“内心与外在”的理论通道与行动逻辑,同时,这也是“德法之辩”命题在形而上层面上的集中表达、诉求与愿景。故在“本天立人”的道德价值本体建构进程之中,各种“德”之要素得以生成、流通并发挥其效用,在此之下,德治也就成为了国家治理模式的不二选择。如此,无论是宗教之崇拜,道德之自律,法律之强制,均无可逃离于“天理”之维。通过对中国传统文化中的“德法之辩”研究,所给我们的思考与启示有,第一、需要我们认真地反思“一断于法或崇德弃法”单极式国家治理模式的历史弊端,道德与法律,各尽其用,并驾齐驱,则长治久安,若任一而为,并无所不用其极,则必为历史抛弃;第二、需要我们认真对待“德主内,法束外”的社会行为规范系统构建模式。那么,“道德法律化”与“法律道德化”则是不可偏废的基本路径;第三、需要我们超越传统文化中的“德法之辩”之历史局限,并创新适合于当下的全新内涵;第四、需要我们从方法论的意义上,认真地分析传统社会中是如何经由“德法之辩”来形成社会价值共识,塑造价值共同体,并实现自我主体性特质建构的理论进路。
[Abstract]:"Debate between Virtue and France" is an important cultural phenomenon that stirs up the traditional Chinese society. What it reveals is the construction of the system, the cultivation of the consciousness of abiding by the law and the choice and perseverance in the mode of national governance. History is not a rigid past, but the driving force of the development of reality. The "Debate of Virtue and Law" in the unified society has always been taking over the past, enlightening the present and planning for the future with a strong historical inertia. Therefore, we need to face it squarely in the process of building a socialist country ruled by law. Therefore, we should discuss the moral and legal relationship that it absorbed and condensed and stirred up in the traditional Chinese Society for thousands of years. Therefore, this paper intends to arrange the following main contents: Firstly, the cultural model provides the necessary cultural elements to support and guide the direction selection and value pursuit of the "debate between morality and law". Therefore, whether from the propositional level to comb the specific state governance model and system construction, or from the metaphysical level to explain and reflect on the ontological implications of the proposition, it is inevitable to need to rely on the cultural background. Only by presenting cultural elements and cultural characteristics one by one can we explore the necessary cultural dimensions and scenarios for the achievements of the following issues. Secondly, on the macro level, through the analysis of the historical process and context of the "debate between morality and law" in Chinese traditional culture, the purpose is to penetrate the relationship between morality and law under the established cultural model. The later cultural characteristics are expected to condense the core elements, historical motives and value themes in the process of "changing" and "unchanged" relations, thus laying a basic theoretical foundation for the elaboration of other issues. By means of the two paths of "legalization of morality" and "moralization of law", Chinese traditional society has molded the legal system and the rule of legitimacy of political power dominated by Confucian ethics for the society and the state at both the internal and external levels of behavior and thought, thus transforming the relationship between morality and law into a concrete system. In this way, it shows the characteristics and inevitability of the system content of "Debate of Virtue and Law" at the lower level under the guidance of specific social ideology. Finally, in the proposition of "Debate of Virtue and Law", the social order control system is formed by "legalization of morality" and "moralization of law". Unity necessarily requires the presupposition and construction of an ultimate value origin and domination, and the formulation of an ultimate referee authority to control and predetermine its value orientation. The social value construction mode of "nature makes man" is the theoretical channel and logic of action to communicate "imagination and objectivity", "inner and outer". At the same time, it is also the metaphysical expression, appeal and vision of the proposition of "debate between morality and law". Thus, no matter religious worship, moral self-discipline, or legal compulsion, can escape from the thinking of "heaven and reason". Through the study of "debate between morality and law" in Chinese traditional culture, we can get our thinking. Examination and Enlightenment are: first, we need to seriously reflect on the historical drawbacks of the unipolar state governance model of "breaking away from the law or worshiping virtue and abandoning the law". Morality and law, each doing its best and keeping pace with the other, will lead to long-term peace and stability. If anything is done, it will be abandoned for history; second, we need to seriously treat "virtue within the Lord, and law outside the law." The third is that we should go beyond the historical limitations of the debate between morality and law in traditional culture and innovate new connotations suitable for the present. The fourth is that we need to be conscientious in the sense of methodology. This paper analyzes how to form social value consensus, shape value community and realize the theoretical approach of self-subjectivity construction in traditional society through the debate between morality and law.
【学位授予单位】：湖南师范大学
【学位级别】：博士
【学位授予年份】：2015
【分类号】：B82-051
本文编号：2199965
[Abstract]:"Debate between Virtue and France" is an important cultural phenomenon that stirs up the traditional Chinese society. What it reveals is the construction of the system, the cultivation of the consciousness of abiding by the law and the choice and perseverance in the mode of national governance. History is not a rigid past, but the driving force of the development of reality. The "Debate of Virtue and Law" in the unified society has always been taking over the past, enlightening the present and planning for the future with a strong historical inertia. Therefore, we need to face it squarely in the process of building a socialist country ruled by law. Therefore, we should discuss the moral and legal relationship that it absorbed and condensed and stirred up in the traditional Chinese Society for thousands of years. Therefore, this paper intends to arrange the following main contents: Firstly, the cultural model provides the necessary cultural elements to support and guide the direction selection and value pursuit of the "debate between morality and law". Therefore, whether from the propositional level to comb the specific state governance model and system construction, or from the metaphysical level to explain and reflect on the ontological implications of the proposition, it is inevitable to need to rely on the cultural background. Only by presenting cultural elements and cultural characteristics one by one can we explore the necessary cultural dimensions and scenarios for the achievements of the following issues. Secondly, on the macro level, through the analysis of the historical process and context of the "debate between morality and law" in Chinese traditional culture, the purpose is to penetrate the relationship between morality and law under the established cultural model. The later cultural characteristics are expected to condense the core elements, historical motives and value themes in the process of "changing" and "unchanged" relations, thus laying a basic theoretical foundation for the elaboration of other issues. By means of the two paths of "legalization of morality" and "moralization of law", Chinese traditional society has molded the legal system and the rule of legitimacy of political power dominated by Confucian ethics for the society and the state at both the internal and external levels of behavior and thought, thus transforming the relationship between morality and law into a concrete system. In this way, it shows the characteristics and inevitability of the system content of "Debate of Virtue and Law" at the lower level under the guidance of specific social ideology. Finally, in the proposition of "Debate of Virtue and Law", the social order control system is formed by "legalization of morality" and "moralization of law". Unity necessarily requires the presupposition and construction of an ultimate value origin and domination, and the formulation of an ultimate referee authority to control and predetermine its value orientation. The social value construction mode of "nature makes man" is the theoretical channel and logic of action to communicate "imagination and objectivity", "inner and outer". At the same time, it is also the metaphysical expression, appeal and vision of the proposition of "debate between morality and law". Thus, no matter religious worship, moral self-discipline, or legal compulsion, can escape from the thinking of "heaven and reason". Through the study of "debate between morality and law" in Chinese traditional culture, we can get our thinking. Examination and Enlightenment are: first, we need to seriously reflect on the historical drawbacks of the unipolar state governance model of "breaking away from the law or worshiping virtue and abandoning the law". Morality and law, each doing its best and keeping pace with the other, will lead to long-term peace and stability. If anything is done, it will be abandoned for history; second, we need to seriously treat "virtue within the Lord, and law outside the law." The third is that we should go beyond the historical limitations of the debate between morality and law in traditional culture and innovate new connotations suitable for the present. The fourth is that we need to be conscientious in the sense of methodology. This paper analyzes how to form social value consensus, shape value community and realize the theoretical approach of self-subjectivity construction in traditional society through the debate between morality and law.
【学位授予单位】：湖南师范大学
【学位级别】：博士
【学位授予年份】：2015
【分类号】：B82-051
【参考文献】
相关期刊论文 前1条
1 焦宝乾;;逻辑与修辞:一对法学研究范式的中西考察[J];中国法学;2014年06期
相关博士学位论文 前1条
1 姒鹭;行政伦理法治化研究[D];首都师范大学;2009年
，本文编号：2199965
本文链接：https://www.wllwen.com/shoufeilunwen/rwkxbs/2199965.html
