潜规则下法的功能的异化
发布时间：2018-11-05 09:44
【摘要】：“潜规则”是吴思先生发明的一个词,它这几年的流行开始迅速流行起来,原因大概在于它是对一种大家并不陌生的社会现象的提示,这个词唤醒了各种各样的个人知识,启发了更多人的深入思考。法律只是社会控制的一种手段,通常被理解为一整套社会选择,政府据此调配资源,名正言顺地使用武力并且建构社会关系。法律越系统、越完备和充分,一般来说对社会的控制也就越有力、有效。但是,法律规范存在着“真空”区域,随着社会不平衡差异加剧和不断发展变化,法律对社会生活的各个方面更不能做到事无巨细的概括无余、包罗万象。同时,现行法律及其法律制度本身就处于一种大转变时期,欠缺和不适应现状以及社会需要的情形很多。在这样一种法律环境下,法律并没有得到一体遵行,人们会自觉或不自觉地寻求另外的途径来填补国家法律规则所留下的规则真空。这就为潜规则及其关系的较为普遍的形成提供了土壤。另外,即使在法律得到很好的执行的地方,也会因为利益的各种冲突和博弈,导致潜规则的产生和盛行。 基于这样的认识,再来看待我们今天的法律,我们将会有一个清醒的头脑。转型时期,中国处于“多元混合秩序”的社会现实状况。这个时期的社会必然会是显规则与潜规则共同发挥作用的互动社会。当然,必须强调,在显规则与潜规则的互动关系中,必须注意发挥法律在其中的主导地位,保持法律必要的权威性和威慑力。法律作为国家积极推进社会发展、维持秩序与稳定的重要工具和手段,在诸种社会调控机制中始终且必然起主导作用,是构建现代法治国家的基础。依法治国是大前提,容忍潜规则的存在是有一定范围和条件的。对于与法律冲突不是太大的部分,以及对于符合大多数人价值选择的合理部分,可以保持妥协。这里所说的妥协,不是允许人们在适用法律时各行其是、另搞一套,而是在保证国家法制统一的前提下,在不与宪法和法律相违背的基础上,考虑到某些领域的特殊情况,作实事求是的变通和灵活有效的处理。只有真正树立起法律的尊严、威严和地位,才能真正实现法治。
[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.
【学位授予单位】：北方工业大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D90
本文编号：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.
【学位授予单位】：北方工业大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D90
【引证文献】
相关博士学位论文 前1条
1 孙强;哲学视域下的潜规则研究[D];中共中央党校;2012年
，本文编号：2311678
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