法治的社会基础
作者简介:王启梁,云南大学法学院教授(云南昆明 650505)
摘要: 法治“本土资源论”可以重新阐释为法治建设的社会基础问题:一是法律和制度是否建立在国家自身的基础上,对本土社会实际具有适应性,这关系到能否实现法治发展的内生性和自主性;二是社会中是否有足够的非正式制度等本土资源,能够促成社会局部和微观领域秩序的形成,以支持法治的推进和法律的实施,或者弥补法律体系本身的不足和缝隙。加强法治的社会基础,关键在于增强法治及法律实施机制的回应性、通过试错和修正机制提升法律的适应性以及建设支持法治的微观机制。在发展和变革的背景下,需要更加审慎地对待法治的社会基础,取得国家规划与社会实际之间的融贯,寻求内生性、自主性法治道路的机会和路径。
Social Foundation of Rule by Law
- Available Online:
2019-10-01
Abstract: The “local source” of rule by law proposed by Su Li is based on the recognition on the relationship between rule by law and the society. It may be re-explained as the issue of social foundation of the building of rule by law. On one side, whether the law and system is founded on the basis of the state itself, and is adapted to the native reality and situation of society, it is related to the innate and autonomous nature for realizing the development of the rule by law. On the other side, whether there is enough local sources, such as informal systems, which can help to form the partial and micro fields of social order, it is to support an improvement of rule by law and the enforcement of law, or to be a remedy to the insufficiency and shortcomings of the legal system itself. In order to lay a sound foundation for the rule by law, it is essential to enhance rule by law, the responsive ability of the law enforcement, as well as to heighten the adaptability of law and to build the micro system in supporting the rule by law through a mechanism of try and revision. The so-called “local source” means those social formation and elements which can promote order. In the situation of development and reform, it is necessary to deal with the social foundation for the rule by law cautiously, thus to communicate between state plan and social reality for the purpose of finding the chance and the routes to an innate and autonomous way of rule by law.