儒家法律思想及其当代价值研究

发布时间：2018-05-14 20:17

本文选题：儒家 + 法律思想　；参考：《曲阜师范大学》2011年硕士论文

【摘要】：法治一词来自西方,亚里士多德在《政治学》中首次提出法治的观点,“法治应当包括两层意义：已成立的法律必须获得普遍的服从,而大家所服从的法律又应该本身是制定得良好的法律。”。哈林顿在《大洋国》中指出,“法律的统治而不是人的统治”由此可见,法治决非仅仅意味着建立一套系统的法律体系,法治的关键点应是在拥有系统法治制度的基础上,坚持“法律主治”的法治精神,且“法治精神”的培育也要与民族固有的精神、习惯相结合。时至今日,我国对西方法律制度的利用与学习已颇有体悟,吴邦国委员长在十一届全国人大四次会议上指出：“一个立足中国国情和实际、适应改革开放和社会主义现代化建设需要、集中体现党和人民意志的,以宪法为统帅,以宪法相关法、民法商法等多个法律部门的法律为主干,由法律、行政法规、地方性法规等多个层次的法律规范构成的中国特色社会主义法律体系已经形成。”但是,西方法治中的理性精神、权利意识等精神层面的主旨却没有跟随法律体系的完善植根于中国。正因如此,要促进我国的法治进程,就须对自己的法律传统进行细致考察,完整理解。儒家法律思想是我国法律思想的本源,作为一种历史文化力量,具有深厚的社会基础,因此,要考察法律传统,非从儒家入手不可。就本文来说,我主要从儒家法律思想的本源“仁”入手,对儒家法律思想进行了解析,归纳总结了儒家法律思想的主要内容：以仁为旨归、以德率法为原则、以礼为规范、以无讼为价值追求。细致阐述儒家法律思想发展的六个阶段。着重分析儒家法律思想的当代价值,主要从以下几个方面进行探析：第一,“人本法律观”对现代法治建设的启示：在法治建设中,我们应把人作为法律价值的最终归宿,体现人性,弘扬人道,体现法律的人性关怀。第二,“礼法合一”对国民内在秩序意识的培育,礼治培植了现代法治所亟需的规则意识,使人们明了自己的社会角色和应承担的基本义务,增强了人们的社会责任感,在为现代法治的普及和得到很好遵守提供合适土壤的同时也减少了阻力。第三,“德主刑辅”对公民自律意识的弥补,”以正为政”加强了为政者的内在修养。“德刑兼用”开创了现代社会的德法综合治理模式。第四,“无讼的价值取向”对社会和谐与稳定的维护与在节约纠纷解决成本方面的作用。通过以上几个方面的论述,以期儒家法律思想与现代法治的结合求得些许的契合点。
[Abstract]:The word "rule of law" comes from the West, and Aristotle first put forward the view of the rule of law in "Politics". "the rule of law should have two meanings: established laws must be universally accepted." And the law to which we are subject should in itself be a well-formulated law. " Harrington pointed out in Oceania that "the rule of law, not the rule of man," shows that the rule of law by no means merely means the establishment of a systematic legal system. The key point of the rule of law should be based on the existence of a system of the rule of law. Adhere to the spirit of rule by law, and the cultivation of the spirit of rule by law should be combined with the inherent spirit and habits of the nation. To this day, China has come to understand the use and study of western legal systems. Chairman Wu Bangguo pointed out at the fourth session of the Eleventh National people's Congress: "one is based on China's national conditions and reality. To meet the needs of reform, opening up and socialist modernization, and to embody the will of the party and the people, the Constitution shall be the commander-in-chief, and the laws of various legal departments, such as the relevant constitutional laws, the civil law and the commercial law, shall be the backbone, and shall be governed by laws, administrative regulations, etc. The legal system of socialism with Chinese characteristics, composed of local laws and regulations and other levels of legal norms, has been formed. " However, the spirit of reason and consciousness of right in the western rule of law did not follow the perfection of the legal system in China. Therefore, in order to promote the process of rule of law in our country, we must make a careful investigation and complete understanding of our own legal tradition. The Confucian legal thought is the origin of the legal thought of our country, as a kind of historical and cultural strength, has the profound social foundation, therefore, to investigate the legal tradition, must start from the Confucianism. As far as this article is concerned, I mainly start with the source of the Confucian legal thought "benevolence", analyze the Confucian legal thought, sum up the main contents of the Confucian legal thought: take benevolence as the purport, take the moral rate as the principle, and take the propriety as the norm. To pursue the value of non-litigation. Elaborate the six stages of the development of Confucian legal thought. This paper focuses on the analysis of the contemporary value of the Confucian legal thought, mainly from the following aspects: first, the enlightenment of the humanist legal view to the construction of the modern rule of law: in the construction of the rule of law, we should regard the human being as the ultimate destination of the legal value. Embody humanity, carry forward humanity, embody the humanity concern of law. Second, "the unity of etiquette and law" cultivates the consciousness of the internal order of the people, and the rule of etiquette cultivates the badly needed sense of rule of law in modern times, which makes people understand their social roles and basic obligations, and strengthens people's sense of social responsibility. While providing the right soil for the popularization and good observance of the modern rule of law, resistance is also reduced. Third, the compensation of self-discipline consciousness of citizens by virtue and punishment, and the strengthening of the inner cultivation of those who are in power. The use of both morality and punishment creates a comprehensive management model of morality and law in modern society. Fourth, the value orientation of non-litigation can maintain social harmony and stability and save the cost of dispute resolution. Through the above several aspects of the discussion, with a view to the combination of Confucian legal thought and the modern rule of law to find some common points.
【学位授予单位】：曲阜师范大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D909.2

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