論中國傳統(tǒng)法律文化對法治的積極影響
發(fā)布時間：2019-04-11 12:53
【摘要】：中華文化是中華民族值得自豪的寶貴精神財富，作為中華文化一部分的中國傳統(tǒng)法律文化是歷史遺留下來了的豐富寶貴遺產(chǎn)。對中國傳統(tǒng)法律文化的精髓思想成果進行系統(tǒng)、深入的探索，透過歷史現(xiàn)象，探究中國傳統(tǒng)法律的內(nèi)涵，以史為鑒，，在法治現(xiàn)代化建設(shè)中傳承中國傳統(tǒng)法律文化精粹，對當代中國法治建設(shè)具有很大的現(xiàn)實意義和不可替代的借鑒作用。沒有民族精神的健強，沒有本民族優(yōu)秀傳統(tǒng)文化的真正的復興，國家強盛、社會和諧、經(jīng)濟繁榮一系列目標是不能達到的。要建設(shè)既符合中國傳統(tǒng)文化精神又不違背中國法治現(xiàn)代化價值要求的法律制度，就必須做到會通古今中西，改進制度，繼承優(yōu)良的傳統(tǒng)法律文化，并有選擇的借鑒、吸收國外的優(yōu)秀法律成果。 在如何進行法治現(xiàn)代化建設(shè)的問題上，主張全面“西化”的，把中國傳統(tǒng)法律文化看作是障礙；主張“本土化”的，則認為“西化”不符合中國國情，沒有其生長的土壤。通過對中國傳統(tǒng)法律文化的深入研究，本文認為：中、西并非“水火不容”的關(guān)系，而是可以“兼收并蓄”的。從傳統(tǒng)文化的角度看，超越時空的界限，去探究文化深處的特質(zhì)，并對中國傳統(tǒng)文化的“道法自然”、“天人合一”、“和而不同”、“天下為公”等主要特征進行分析，證明中國傳統(tǒng)文化的核心價值是理性的、合道的、極富生命力的。從人文的角度看，西方的法治觀念有許多根本價值追求與中國傳統(tǒng)文化的內(nèi)容“暗合”，這不是簡單的巧合，而是文化的“契合”。全世界各民族所追求的最終目標都是人類本身的福祉，所以，全球文化雖然多樣化，目標卻是一致的。同理，無論法治的模式如何多樣，其目的也都是追求“良法良治”，追求文明和先進是當前中西法律文化交流的理由和目標。 在沒有出現(xiàn)普適的法治模式的前提下，中國法治之路必須注重傳統(tǒng)法律文化影響的研究和實踐。中國當下的法治實踐應貫徹吸收人類一切先進文化的原則，首先是吸收傳統(tǒng)法律文化精粹，同時也包括西方法律文化在內(nèi)的其它法律文化。從影響程度來看，中國傳統(tǒng)法律文化對當下中國法治建設(shè)的影響應當是內(nèi)在的、主體性的，甚至是根本的，西方法律文化的影響則是外在的、客體性的和具體的。從中國傳統(tǒng)文化兼容性特征來講，傳統(tǒng)法律文化不但不是法治現(xiàn)代化的阻力，而且還是能溶解西方法律文化優(yōu)秀成果的混合動力，在為法治現(xiàn)代化建設(shè)服務的同時，傳統(tǒng)法律文化也必然能實現(xiàn)自身的現(xiàn)代化。
[Abstract]:Chinese culture is the precious spiritual wealth of the Chinese nation. As a part of Chinese culture, Chinese traditional legal culture is a rich and valuable legacy left over from history. This paper makes a systematic and in-depth exploration of the essence of Chinese traditional legal culture, explores the connotation of Chinese traditional law through historical phenomena, and inherits the essence of Chinese traditional legal culture in the modernization of the rule of law by taking history as a lesson. It is of great practical significance and irreplaceable reference to the construction of rule of law in contemporary China. Without a strong national spirit and a true revival of their outstanding traditional culture, the country is strong and prosperous, social harmony and economic prosperity are a series of goals that cannot be achieved. In order to build a legal system that is in line with the spirit of Chinese traditional culture and does not violate the value requirements of the modernization of China's rule of law, it is necessary to improve the system, inherit the fine traditional legal culture, and use for reference selectively. Absorb excellent foreign legal achievements. On the question of how to carry out the modernization of the rule of law, those who advocate "westernization" in an all-round way, regard Chinese traditional legal culture as an obstacle, and those who advocate "localization" think that "westernization" does not accord with China's national conditions and has no soil for its growth. Through an in-depth study of Chinese traditional legal culture, this paper holds that: China, the West is not the relationship between water and fire, but can be "inclusive". From the point of view of traditional culture, go beyond the boundaries of time and space to explore the characteristics of deep culture, and analyze the main characteristics of Chinese traditional culture, such as "Tao, law, nature", "unity of nature and man", "harmony but difference", "the world is common to people", and so on. It is proved that the core value of Chinese traditional culture is rational, reasonable and full of vitality. From the humanistic point of view, the western concept of rule of law has a lot of fundamental values in pursuit of the content of Chinese traditional culture "implicit coincidence", this is not a simple coincidence, but a "fit" of culture. The ultimate goal pursued by all peoples around the world is the well-being of mankind itself, so, while global cultures are diverse, their goals are consistent. Similarly, no matter how diverse the modes of the rule of law are, the aim is to pursue "good law and good governance", and the pursuit of civilization and advanced is the reason and goal for the exchange of law and culture between China and the West at present. In the absence of a universal model of rule of law, the road to rule of law in China must pay attention to the study and practice of the influence of traditional legal culture. China's current practice of rule of law should carry out the principle of absorbing all advanced human cultures, first of all, to absorb the essence of traditional legal culture, but also to include other legal cultures, including western legal culture. From the perspective of the influence degree, the influence of Chinese traditional legal culture on the construction of rule of law in China should be internal, subjective and even fundamental, while the influence of western legal culture is external, objective and concrete. From the compatibility characteristics of Chinese traditional culture, traditional legal culture is not only not a resistance to the modernization of the rule of law, but also a hybrid power that can dissolve the outstanding achievements of western legal culture and serve the modernization of the rule of law at the same time. The traditional legal culture is bound to realize its own modernization.
【學位授予單位】：沈陽師范大學
【學位級別】：碩士
【學位授予年份】：2011
【分類號】：D909.2
本文編號：2456419
[Abstract]:Chinese culture is the precious spiritual wealth of the Chinese nation. As a part of Chinese culture, Chinese traditional legal culture is a rich and valuable legacy left over from history. This paper makes a systematic and in-depth exploration of the essence of Chinese traditional legal culture, explores the connotation of Chinese traditional law through historical phenomena, and inherits the essence of Chinese traditional legal culture in the modernization of the rule of law by taking history as a lesson. It is of great practical significance and irreplaceable reference to the construction of rule of law in contemporary China. Without a strong national spirit and a true revival of their outstanding traditional culture, the country is strong and prosperous, social harmony and economic prosperity are a series of goals that cannot be achieved. In order to build a legal system that is in line with the spirit of Chinese traditional culture and does not violate the value requirements of the modernization of China's rule of law, it is necessary to improve the system, inherit the fine traditional legal culture, and use for reference selectively. Absorb excellent foreign legal achievements. On the question of how to carry out the modernization of the rule of law, those who advocate "westernization" in an all-round way, regard Chinese traditional legal culture as an obstacle, and those who advocate "localization" think that "westernization" does not accord with China's national conditions and has no soil for its growth. Through an in-depth study of Chinese traditional legal culture, this paper holds that: China, the West is not the relationship between water and fire, but can be "inclusive". From the point of view of traditional culture, go beyond the boundaries of time and space to explore the characteristics of deep culture, and analyze the main characteristics of Chinese traditional culture, such as "Tao, law, nature", "unity of nature and man", "harmony but difference", "the world is common to people", and so on. It is proved that the core value of Chinese traditional culture is rational, reasonable and full of vitality. From the humanistic point of view, the western concept of rule of law has a lot of fundamental values in pursuit of the content of Chinese traditional culture "implicit coincidence", this is not a simple coincidence, but a "fit" of culture. The ultimate goal pursued by all peoples around the world is the well-being of mankind itself, so, while global cultures are diverse, their goals are consistent. Similarly, no matter how diverse the modes of the rule of law are, the aim is to pursue "good law and good governance", and the pursuit of civilization and advanced is the reason and goal for the exchange of law and culture between China and the West at present. In the absence of a universal model of rule of law, the road to rule of law in China must pay attention to the study and practice of the influence of traditional legal culture. China's current practice of rule of law should carry out the principle of absorbing all advanced human cultures, first of all, to absorb the essence of traditional legal culture, but also to include other legal cultures, including western legal culture. From the perspective of the influence degree, the influence of Chinese traditional legal culture on the construction of rule of law in China should be internal, subjective and even fundamental, while the influence of western legal culture is external, objective and concrete. From the compatibility characteristics of Chinese traditional culture, traditional legal culture is not only not a resistance to the modernization of the rule of law, but also a hybrid power that can dissolve the outstanding achievements of western legal culture and serve the modernization of the rule of law at the same time. The traditional legal culture is bound to realize its own modernization.
【學位授予單位】：沈陽師范大學
【學位級別】：碩士
【學位授予年份】：2011
【分類號】：D909.2
【參考文獻】
相關(guān)期刊論文 前9條
1 梁治平;中國法的過去、現(xiàn)在與未來:一個文化的檢討[J];比較法研究;1987年02期
2 高鴻鈞;;法律文化與法律移植:中西古今之間[J];比較法研究;2008年05期
3 公丕祥;;全球化時代的中國法制現(xiàn)代化議題[J];法學;2009年05期
4 顧培東;;中國法治的自主型進路[J];法學研究;2010年01期
5 張志銘;;轉(zhuǎn)型中國的法律體系建構(gòu)[J];中國法學;2009年02期
6 張晉藩;;論中華法制文明的幾個問題[J];中國法學;2009年05期
7 張文顯;;論中國特色社會主義法治道路[J];中國法學;2009年06期
8 何勤華;;法的國際化與本土化:以中國近代移植外國法實踐為中心的思考[J];中國法學;2011年04期
9 錢穆;;中國文化對人類未來可有的貢獻[J];中國文化;1991年01期
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