法治思维的三个面向及要求

Three Aspects of the Rule of Law Thinking and Its Requirements

何谓法治思维在理论上存有争论。从实体、形式和过程三个视角来看,法治思维具有权利面向、规则面向和程序面向。法治以权利为中心,因而法治思维具有权利面向,权利面向要求注重权利的维护与实现,立基于权利为权力的来源与基础这一立场来思考问题。法治以规则为载体,因而法治思维具有规则面向,规则面向使法治思维具有追求平等、注重向后看以及强调规则形式性等特征。法治既把程序看作技术性手段,又赋予程序以正统化法秩序的基础性地位,因而法治思维具有程序面向,程序面向要求把程序主义的商谈置于前提性地位,恪守法律实施过程中的程序性规定并尊重程序运作的结果。

From three perspectives of entity,form and process,the rule of law thinking has three aspects of right,rule andprocedure. The rule of law regards the right as the center,so the rule of law thinking has the right aspect,which attachesgreat importance to the right protection and realization and needs the origin and basis of right to think over questions. Therule of law regards the rule as the carrier,so it has the rule aspect,which makes thought of the rule of law have some fea-tures of the pursuit of equality,looking backward and emphasizing the rule＇s formality. The rule of law not only regards pro-cess as strategic means,but also as a way legitimatizing the whole legal system,so the rule of law thinking has the processaspect,which urges to put procedural discussions in the first position,abiding by procedure strictly in law application andshowing respect for the results of process working.