从传统礼治文化秩序迈向现代软法规范秩序

Going from Traditional Rule by Rites Cultural Order to Modern Rule by Soft Law Order

我国传统的礼治文化秩序注重提升官吏的权力理性修养,从日常公务活动的细节层面约束官吏的公权力行为;而西方现代的软法规范秩序注重国民的契约理性培养,从社会合作关系建构的角度引导国民慎重对待法定的权利,两类社会秩序都以人的社会性为出发点。文章主张从推进国家治理体系现代化的现实需要出发,围绕新时代完善国家法律体系的法治建设目标,将中国传统礼治文化秩序中的权力理性因素与西方现代软法秩序中的契约理性因素结合起来,建立一种吏治功能与民治功能兼备、权力理性与契约理性并重的现代软法规范体系。

In Chinese traditional rule by rites cultural order,emphasis is placed on cultivating officials' power rationality,with restriction on officials' acts to exercise public power in their routine official activities.Modern Western soft law order puts emphasis on culture of citizens' contract rationality,and in a way for constructing social cooperative relationship,guides citizens to treat legal rights prudently.Both social orders take man's sociality as the starting point.The author maintains that we should,proceeding from the need to promote modernization of state governance system and following the goal of improving state law system in the new age,establish a modern system of soft laws and norms that has the function of managing officials and common people,and that places equal importance to power rationality and contract rationality,by combining factors of power rationality in Chinese traditional rule by rites cultural order with factors in the contract rationality present in modern Western soft law order.