潛規(guī)則下法的功能的異化
發(fā)布時間：2018-11-05 09:44
【摘要】：“潛規(guī)則”是吳思先生發(fā)明的一個詞,它這幾年的流行開始迅速流行起來,原因大概在于它是對一種大家并不陌生的社會現(xiàn)象的提示,這個詞喚醒了各種各樣的個人知識,啟發(fā)了更多人的深入思考。法律只是社會控制的一種手段,通常被理解為一整套社會選擇,政府據(jù)此調(diào)配資源,名正言順地使用武力并且建構(gòu)社會關(guān)系。法律越系統(tǒng)、越完備和充分,一般來說對社會的控制也就越有力、有效。但是,法律規(guī)范存在著“真空”區(qū)域,隨著社會不平衡差異加劇和不斷發(fā)展變化,法律對社會生活的各個方面更不能做到事無巨細(xì)的概括無余、包羅萬象。同時,現(xiàn)行法律及其法律制度本身就處于一種大轉(zhuǎn)變時期,欠缺和不適應(yīng)現(xiàn)狀以及社會需要的情形很多。在這樣一種法律環(huán)境下,法律并沒有得到一體遵行,人們會自覺或不自覺地尋求另外的途徑來填補(bǔ)國家法律規(guī)則所留下的規(guī)則真空。這就為潛規(guī)則及其關(guān)系的較為普遍的形成提供了土壤。另外,即使在法律得到很好的執(zhí)行的地方,也會因為利益的各種沖突和博弈,導(dǎo)致潛規(guī)則的產(chǎn)生和盛行。 基于這樣的認(rèn)識,再來看待我們今天的法律,我們將會有一個清醒的頭腦。轉(zhuǎn)型時期,中國處于“多元混合秩序”的社會現(xiàn)實(shí)狀況。這個時期的社會必然會是顯規(guī)則與潛規(guī)則共同發(fā)揮作用的互動社會。當(dāng)然,必須強(qiáng)調(diào),在顯規(guī)則與潛規(guī)則的互動關(guān)系中,必須注意發(fā)揮法律在其中的主導(dǎo)地位,保持法律必要的權(quán)威性和威懾力。法律作為國家積極推進(jìn)社會發(fā)展、維持秩序與穩(wěn)定的重要工具和手段,在諸種社會調(diào)控機(jī)制中始終且必然起主導(dǎo)作用,是構(gòu)建現(xiàn)代法治國家的基礎(chǔ)。依法治國是大前提,容忍潛規(guī)則的存在是有一定范圍和條件的。對于與法律沖突不是太大的部分,以及對于符合大多數(shù)人價值選擇的合理部分,可以保持妥協(xié)。這里所說的妥協(xié),不是允許人們在適用法律時各行其是、另搞一套,而是在保證國家法制統(tǒng)一的前提下,在不與憲法和法律相違背的基礎(chǔ)上,考慮到某些領(lǐng)域的特殊情況,作實(shí)事求是的變通和靈活有效的處理。只有真正樹立起法律的尊嚴(yán)、威嚴(yán)和地位,才能真正實(shí)現(xiàn)法治。
[Abstract]:"latent rules" is a word invented by Mr. Wu, and its popularity in recent years has rapidly begun to catch on, probably because it is a reminder of a social phenomenon that is no stranger to us, a word that awakens all kinds of personal knowledge. Inspired more people to think deeply. Law is only a means of social control, which is usually understood as a set of social choices, according to which the government allocates resources, justifies the use of force and constructs social relations. The more systematic, the more complete and adequate the law is, the more effective and effective is the control of society in general. However, there is a "vacuum" in the legal norms. With the aggravation and continuous development of the social imbalance, the law can not generalize all aspects of social life in detail. At the same time, the current law and its legal system itself is in a period of great change, lacking and not adapting to the current situation and social needs. In such a legal environment, the law is not obeyed, people will consciously or unconsciously seek other ways to fill the rule vacuum left by the national legal rules. This provides the soil for the formation of the underlying rules and their relationships. In addition, even where the law is executed well, it will lead to the emergence and prevalence of hidden rules because of various conflicts of interests and games. Based on this understanding, we will have a clear mind when we look at our laws today. In the period of transition, China is in the social reality of pluralistic mixed order. The society of this period is bound to be an interactive society in which explicit rules and latent rules work together. Of course, it must be emphasized that in the interactive relationship between explicit rules and latent rules, attention must be paid to giving play to the dominant position of the law and maintaining the necessary authority and deterrent power of the law. As an important tool and means for the country to actively promote social development and maintain order and stability, law has always played a leading role in all kinds of social regulation and control mechanisms and is the foundation of the construction of a modern country ruled by law. Governing the country according to law is the major premise, the existence of tolerance of latent rules has a certain scope and conditions. Compromise can be maintained for those parts that are not too much in conflict with the law, and for reasonable parts that are in line with the values of the majority. The compromise referred to here is not to allow people to go their own way in the application of the law, but to take into account the special circumstances in certain areas on the premise of ensuring the unity of the legal system of the country and without contravening the Constitution and the law. To be practical, flexible and effective. Only by establishing the dignity, dignity and status of the law can the rule of law be realized.
【學(xué)位授予單位】：北方工業(yè)大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2011
【分類號】：D90
本文編號：2311678
[Abstract]:"latent rules" is a word invented by Mr. Wu, and its popularity in recent years has rapidly begun to catch on, probably because it is a reminder of a social phenomenon that is no stranger to us, a word that awakens all kinds of personal knowledge. Inspired more people to think deeply. Law is only a means of social control, which is usually understood as a set of social choices, according to which the government allocates resources, justifies the use of force and constructs social relations. The more systematic, the more complete and adequate the law is, the more effective and effective is the control of society in general. However, there is a "vacuum" in the legal norms. With the aggravation and continuous development of the social imbalance, the law can not generalize all aspects of social life in detail. At the same time, the current law and its legal system itself is in a period of great change, lacking and not adapting to the current situation and social needs. In such a legal environment, the law is not obeyed, people will consciously or unconsciously seek other ways to fill the rule vacuum left by the national legal rules. This provides the soil for the formation of the underlying rules and their relationships. In addition, even where the law is executed well, it will lead to the emergence and prevalence of hidden rules because of various conflicts of interests and games. Based on this understanding, we will have a clear mind when we look at our laws today. In the period of transition, China is in the social reality of pluralistic mixed order. The society of this period is bound to be an interactive society in which explicit rules and latent rules work together. Of course, it must be emphasized that in the interactive relationship between explicit rules and latent rules, attention must be paid to giving play to the dominant position of the law and maintaining the necessary authority and deterrent power of the law. As an important tool and means for the country to actively promote social development and maintain order and stability, law has always played a leading role in all kinds of social regulation and control mechanisms and is the foundation of the construction of a modern country ruled by law. Governing the country according to law is the major premise, the existence of tolerance of latent rules has a certain scope and conditions. Compromise can be maintained for those parts that are not too much in conflict with the law, and for reasonable parts that are in line with the values of the majority. The compromise referred to here is not to allow people to go their own way in the application of the law, but to take into account the special circumstances in certain areas on the premise of ensuring the unity of the legal system of the country and without contravening the Constitution and the law. To be practical, flexible and effective. Only by establishing the dignity, dignity and status of the law can the rule of law be realized.
【學(xué)位授予單位】：北方工業(yè)大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2011
【分類號】：D90
【引證文獻(xiàn)】
相關(guān)博士學(xué)位論文 前1條
1 孫強(qiáng);哲學(xué)視域下的潛規(guī)則研究[D];中共中央黨校;2012年
，本文編號：2311678
本文鏈接：http://sikaile.net/falvlunwen/falilunwen/2311678.html
