当代中国语境下的法治思维

The Legal Thinking in the Context of Contemporary China

法治思维作为一个时兴概念在当下中国被不断提及,并成为社会治理领域的正当性话语,因此需立足于法治的基本要求,结合法治实践的个案场景,在发现当代中国法治建设薄弱环节的同时探讨法治思维的运用问题。而法治思维内涵的既有界定往往抽象而不具可操作性。因此,法治思维是以规则为中心,合法性判断为优先,限制权力保障权利,坚持正当程序的思维方式。要注意反思当代中国社会治理中与法治思维相左的四类主要问题:领导意志对法律执行的扭曲,法外利益与纠纷解决的乱象,公权力过于强势的现状,重结果轻程序的思维传统。

In contemporary China , the legal thinking has been a popular and often mentioned concept , which has been deemed as a legitimate discourse in the area of social governance .Therefore, based on funda-mental requirements of ruling of law and with regard to specific situations of practice ruling of law , it is suggested to discuss the practice of the legal thinking in the context of discovering the weakness in the construction of ruling of law.However, the present definition of the legal thinking tends to be metaphysical rather than feasi -ble.This paper holds that the legal thinking is a rule -centered mentality of considering legitimacy judgment as priority , protecting rights by restricting powers , and maintaining due process .Moreover , this paper sorts out and reflects on the following four major types of issues that odd with the legal thinking in social governance of contemporary China , including the distortion of law enforcement by the leadership ’ s will, the chaos of in-terests beyond law and disputes settlement , the current situations of over -dominant public power , and the tra-ditional thinking of valuing more on results while less on procedure .