当代中国纠纷解决的三种话语及实践探析

Exploration on the Three Discourses and Practice of Dispute Resolution in Contemporary China

引入"话语"概念,"道德话语""政治话语""法律话语"可以作为当代中国纠纷解决的三种话语。"道德话语"是以中国传统思想为指导、以儒家伦理中的"礼"为中心建构起来的、强调实质正义的话语体系;"政治话语"是由中国共产党缔造的、为了一定政治利益和政治目标并经历了共产党建设到国家建设演变历程的话语体系;"法律话语"是以保障现代社会"权利—义务"关系为核心、以国家制定的法律规则体系为导向、强调程序正义的话语体系。在中国社会转型期,三种话语指代了三种不同的合法性生成系统,并呈现出"显性分化"与"隐性冲突"两种相貌。这就要求我们在文化自信的基础上探寻三种话语之间的关系协同与权威配置。只有符合中国本土文化的法治建设,才能持久运行,发挥作用。

The article has defined ＂ moral discourse＂, ＂ political discourse＂, ＂ legal discourse＂ as three major discourses of dispute resolution in contemporary China by introducing the concept of ＂ discourse＂. ＂ Moral discourse＂ is the discourse system which is guided by the traditional thought of China and constructed by taking the ＂ ritual＂ of Confucian ethics as the center,it put emphasis on substantive justice; ＂ Political discourse＂ is the discourse system which is created by the Communist Part of China for the certain political interests and political goals,it has experienced the course from the construction of the Communist Party of China to the national construction; ＂ Legal discourse＂ is the discourse system which takes the protection of the relationship of ＂ right-obligation＂ of modern society as the core,takes the legal systems formulated by the state as the guideline and emphasizes procedural justice. In period of social transformation of China,the three discourses have referred to three different generating systems of legality and presented the two kinds of appearance of ＂ explicit differentiation＂ and ＂ recessive conflict＂. This requires us to explore the relationship collaboration and authority configuration between the three discourses on the basis of cultural confidence. Only conforming to the local culture of China can guarantee the construction of law smoothly.