论法律制度创新的习俗基础

On the Convention Basis of the Innovation of Legal Institution

任何制度最终都是关于人的制度。法律不是一种纯粹的权力作用。它的实现有赖于人们服从与接受 ,这与习俗有着密切的联系。本文试图从习俗和正式制度的关系层面揭示出 :制度创新不仅是一个立法过程 ,还是对人类社会积淀下来的习俗进行尊重的过程 ;制度创新不仅要从基本的民情出发 ,还要营造先进文化与中国特色相结合的文化氛围 ,从而体现法律制度创新对人类社会基本价值的关怀。

A system eventually concerns humans. Law isn't a mere function of power. And its effectuation depends on the submission and acceptance by people, which has close relationship with conventions. This paper attempts to reveal through the relationship between conventions and formal systems that the innovation of institution is not only a legislation process, but also a process of respecting the conventions deposited in human society; that the innovation of institutions should not only start from basic national conditions, but also cultivate a cultural atmosphere of the integration between advanced culture and the characteristics of China so as to embody the concern for the essential values of humanity by means of innovation of the legal institution.