論我國習慣法在法治建設(shè)中的價值
發(fā)布時間：2018-07-24 16:39
【摘要】：我國的法治秩序的建構(gòu)是一項系統(tǒng)工程,它涉及到社會生活的各個方面。國家法秩序和習慣法秩序是法治秩序的重要組成部分。因為法是多元的,從而法治實踐的規(guī)范資源也是多元的,既有國家制定法,也有習慣法。通過對習慣法和國家法以及二者之間關(guān)系的研究似乎更能讓我們清晰地認識到法治建設(shè)的梗阻問題,進而主張法治進程中要實現(xiàn)國家法和習慣法的對接與溝通,恰當?shù)匕l(fā)掘習慣法的價值。這是本文要探討的問題和意義之所在。 要從習慣法中發(fā)掘其價值就必須先對習慣法有一個清醒的認識。習慣法的概念界定一直是學界討論的話題,本文站在法律多元的語境下,摒棄了傳統(tǒng)法學的一元法律觀,就法做出了一個更廣泛意義上的解釋,法是一系列規(guī)則體系。這樣習慣法的概念才可能得以提出,習慣法自身的特征使得其與習慣、國家法區(qū)別開來。作為原生規(guī)則的習慣法和作為創(chuàng)生規(guī)則的國家法是并存的,它們之間存在矛盾沖突,但也存在互補和融合。在當下,我國習慣法具有雙重屬性,它既是特定社會組織社會區(qū)域秩序的維護者,又是法治秩序支撐者。 研究習慣法的意義不僅在于向人們展示習慣法這一民族文化的瑰寶,更在于給我國的法治建設(shè)提供一個可行的借鑒和指引。我國法治建設(shè)應(yīng)該走怎樣的道路一直是法學界討論的重要課題。一種觀點是“自發(fā)秩序道路”或稱“自主型法治道路”；另一種是“法律移植道路”或者“現(xiàn)代化道路”。然而兩種道路的局限性讓我們不得不重新審視我國法治建設(shè)的實現(xiàn)途徑。由于我國的特殊國情以及自身的歷史原因和現(xiàn)實原因,兩種道路的結(jié)合成為我國的法治實踐的必然選擇。在這種混合道路中,法律移植所取得的成就是功不可沒的,但是“本土資源”的潛力也是有待進一步開發(fā)。其在國家法制定、司法實踐、守法心理的塑造以及社會治理方面的價值對為法治建設(shè)提供了良好的社會環(huán)境。
[Abstract]:The construction of legal order in China is a systematic project, which involves all aspects of social life. The order of state law and customary law is an important part of the order of rule of law. Because the law is pluralistic, so the normative resources of the practice of rule of law are pluralistic, both the state law and customary law. Through the study of customary law and national law and the relationship between them, it seems that we can clearly understand the obstruction of the construction of the rule of law, and then advocate that the connection and communication between national law and customary law should be realized in the process of rule of law. Properly excavate the value of customary law. This is the problem and significance of this paper. In order to discover its value from customary law, we must have a clear understanding of customary law. The definition of the concept of customary law has always been a topic of discussion in academic circles. In the context of legal pluralism, this article abandoned the monistic legal view of traditional jurisprudence, and made a more extensive interpretation of law, which is a series of rules system. In this way, the concept of customary law can be put forward, and the characteristics of customary law make it different from custom and national law. The customary law as the primary rule and the national law as the creation rule coexist, and there are contradictions and conflicts between them, but there is also complementarity and integration. At present, the customary law of our country has dual attributes, it is not only the maintainer of the social regional order of the specific social organization, but also the maintainer of the order of the rule of law. The significance of studying customary law is not only to show people that customary law is the treasure of national culture, but also to provide a feasible reference and guidance for the construction of rule of law in our country. What kind of road should be taken in the construction of the rule of law in our country has always been an important topic for discussion in the field of law. One view is "the road of spontaneous order" or "the road of independent rule of law", the other is "the road of law transplantation" or "road of modernization". However, the limitations of the two ways make us have to re-examine the ways to achieve the construction of the rule of law in our country. Because of the special national conditions of our country and its own historical and realistic reasons, the combination of the two ways has become the inevitable choice of our country's practice of ruling by law. In this mixed road, the achievements of legal transplantation are indispensable, but the potential of "local resources" needs to be further developed. Its value in the establishment of national law, judicial practice, law-abiding psychology and social governance provides a good social environment for the construction of the rule of law.
【學位授予單位】：湘潭大學
【學位級別】：碩士
【學位授予年份】：2010
【分類號】：D920.0
本文編號：2141992
[Abstract]:The construction of legal order in China is a systematic project, which involves all aspects of social life. The order of state law and customary law is an important part of the order of rule of law. Because the law is pluralistic, so the normative resources of the practice of rule of law are pluralistic, both the state law and customary law. Through the study of customary law and national law and the relationship between them, it seems that we can clearly understand the obstruction of the construction of the rule of law, and then advocate that the connection and communication between national law and customary law should be realized in the process of rule of law. Properly excavate the value of customary law. This is the problem and significance of this paper. In order to discover its value from customary law, we must have a clear understanding of customary law. The definition of the concept of customary law has always been a topic of discussion in academic circles. In the context of legal pluralism, this article abandoned the monistic legal view of traditional jurisprudence, and made a more extensive interpretation of law, which is a series of rules system. In this way, the concept of customary law can be put forward, and the characteristics of customary law make it different from custom and national law. The customary law as the primary rule and the national law as the creation rule coexist, and there are contradictions and conflicts between them, but there is also complementarity and integration. At present, the customary law of our country has dual attributes, it is not only the maintainer of the social regional order of the specific social organization, but also the maintainer of the order of the rule of law. The significance of studying customary law is not only to show people that customary law is the treasure of national culture, but also to provide a feasible reference and guidance for the construction of rule of law in our country. What kind of road should be taken in the construction of the rule of law in our country has always been an important topic for discussion in the field of law. One view is "the road of spontaneous order" or "the road of independent rule of law", the other is "the road of law transplantation" or "road of modernization". However, the limitations of the two ways make us have to re-examine the ways to achieve the construction of the rule of law in our country. Because of the special national conditions of our country and its own historical and realistic reasons, the combination of the two ways has become the inevitable choice of our country's practice of ruling by law. In this mixed road, the achievements of legal transplantation are indispensable, but the potential of "local resources" needs to be further developed. Its value in the establishment of national law, judicial practice, law-abiding psychology and social governance provides a good social environment for the construction of the rule of law.
【學位授予單位】：湘潭大學
【學位級別】：碩士
【學位授予年份】：2010
【分類號】：D920.0
【參考文獻】
相關(guān)期刊論文 前10條
1 徐勇;;“法律下鄉(xiāng)”:鄉(xiāng)土社會的雙重法律制度整合[J];東南學術(shù);2008年03期
2 蘇力;當代中國法律中的習慣——一個制定法的透視[J];法學評論;2001年03期
3 關(guān)保英;論行政習慣法[J];甘肅政法學院學報;2000年03期
4 李學蘭;;從功能與意義視角看民間法研究[J];甘肅政法學院學報;2006年05期
5 賈煥銀;;民間法研究之于中國法學:意義與方法啟示[J];甘肅政法學院學報;2006年06期
6 郝紅梅;韓德強;;論村民自治權(quán)運行中的權(quán)力制約問題[J];甘肅政法學院學報;2008年01期
7 林孝文;;瑤族法律文化研究——以廣西金秀瑤族為例[J];甘肅政法學院學報;2008年01期
8 何真;唐清利;;制度化與非制度化:國家法與民族習慣交叉滲透的生產(chǎn)性實踐[J];甘肅政法學院學報;2008年02期
9 李清偉;;法律人類學視角下的法的概念與法律失靈[J];甘肅政法學院學報;2008年03期
10 程朝陽;韓紅;;論民間規(guī)則的價值蘊涵及其對農(nóng)村法治的可能啟示[J];甘肅政法學院學報;2008年04期
，本文編號：2141992
本文鏈接：http://sikaile.net/shekelunwen/minzhuminquanlunwen/2141992.html
最近更新
教材專著
