通过科学立法促进民族交往交流交融的法理探讨

An Investigation of the Legal Principles of Promoting Exchange,Communication and Integration among Different Ethnic Groups through Scientific Legislation

在中华民族“多元一体”背景下,加强各民族交往交流交融,是铸牢中华民族共同体意识的必然要求。而通过科学立法建立完备的法律规范体系,则是运用法治思维和法治方式,促进各民族交往交流交融的根本前提。当前我国的民族法律规范体系虽已基本建成,但仍存在一些法律原则的表达不够严谨、法律概念的界定不够准确、法律规则的内容不够明晰和完整、规范体系的结构不够完备和和谐等缺陷和不足,难以满足在政治、经济、文化、社会和生态建设中通过法治方式有效协调民族关系,促进各民族交往交流交融的需要。这就要求立法者应遵循《立法法》确定的科学立法的形式合理性和实质合理性的要求,妥善处理法律规范体系与现实需要的适应性和可执行性,由此才能为通过法治促进各民族交往交流交融奠定坚实的制度基础。从科学立法与依法立法、民主立法的关系来看,遵循依法立法,是保障法的形式合理性的前提;坚持民主立法,则是保障法的实质合理性的根基。为提升立法的科学品质,必须健全违宪审查机制、协商民主机制和立法理论形成机制,确保依法立法、民主立法原则的有效落实。

Within the framework of "diversity in unity"of the Chinese nation,it is necessary to encourage more exchange,communication and integration among the different ethnic groups so as to forge a sense of community for the Chinese nation and realize the great rejuvenation of the Chinese nation. And, moreover, the establishment of a complete legal and regulatory system through scientific legislation is the fundamental prerequisite for adopting the rule of law,and for the ways of thinking and methods needed to maintain ethnic relations of equality,solidarity,mutual assistance and harmony,and to promote exchange and interaction among different ethnic groups.From a legal perspective,the requirements of scientific legislation include the legislative process and legislative results. Judging from their relationship,although the scientific nature of the legislative process is an important factor that determines the scientific nature of the legislative results,one still needs to figure out whether the legal regulatory system,as a product of the legislative process,has problems,and based on this one should analyze whether the legislative process itself has been scientifically conducted,in order to clarify whether there are issues that need to be improved during the legislative process. Therefore,the formulation of scientific legislative judgment standards should be carried out by taking the static legal regulatory system as the object of evaluation. The analysis or judgment,no matter whether it is made during or after legislation,should follow the requirements of judgment standards for scientific legislation,and,the question of whether the legislative products meet the scientific requirements should be regarded as the fundamental problem to be solved. However,clarifying the judgment standards for scientific legislation only provides a possibility for solving the scientific nature of legislation. In order to realize this possibility, it requires legislators truly and fully conform to the requirements of scientific legislative standards while carrying out legislative work.Therefore,in order to effectively promote scientific legislation,one must establish a reasonable legislative system and mechanisms which ensure that scientific legislative standards can be effectively implemented in the legislative practice.Generally speaking,whether or not the legislation is scientific should be judged from two aspects of whether the legal norms and regulations that have been formulated by the legislator are in accordance with the objective laws of economic and social development,as well as the inherent laws of the legal system. However,this only provides an analytical perspective with which to judge whether or not the legislation is scientific. In order to ensure the validity of the analysis and judgment,the legislator should strictly abide by the requirements of the formal and substantive rationalities that are determined by the "Legislation Law ". This requires not only solving the rigorousness of legal principles, the accuracy of legal concepts, the clarity and completeness of legal rules microscopically,but also requires solving the completeness and consistency of the legal norms and regulation system macroscopically. Meanwhile, it also requires seriously treating the adaptability between the legal norms and regulatory systems and the actual needs of cultural,social and ecological development. Only under such circumstances,can it eliminate the restraints of defects and loopholes found within the ethnic legal norms and regulatory system,such as the lack of rigorous expression of principles,the inaccurate definition of concepts,the unclear content of the rules,the unclear purpose of rules,and the incomplete systemic structure for exchange and interaction among different ethnic groups. It also needs to effectively respond to the legal needs formed by factors,such as the particularity of geographical spatial distribution,the differences( or gaps) in economic and social development and the diversities of traditional cultures within the context of the staggered and mixed residence of various ethnic groups;fundamentally handle the adaptability and enforceability issues of the law;and lay a solid institutional foundation for promoting exchange and interaction among different ethnic groups through the rule of law.Establishing a complete and perfectlegislative system and mechanism, and ensuring that the judgment standards and specific requirements of scientific legislation are truly implemented during the legislative process,is a key point for to guaranteeing the scientific nature of legislative products.From the perspective of the relationship among scientific legislation,legislation by law,and democratic legislation,conforming to the legislation by law is the prerequisite for ensuring the formal rationality of the law;and,adhering to the democratic legislation is the foundation for guaranteeing the substantive rationality of the law. Therefore,in order to improve the scientific quality of the legislation,one needs firstly, to establish a review mechanism to supervise behaviors that are contrary to the Constitution in order to ensure the effective implementation of the legislative principles of the law,properly handle the structural relationship between different sources of the law,and improve the formal rationality of ethnic legal norms and the regulation system,and enhance the enforceability of the norms of ethnic law.Secondly,one requires perfecting the consultative democratic legislative mechanism under the condition of adhering to the legislative work mechanism of "Leading by the CPC Committee,guiding by the People ’s Congress,relying on the Government,and the participation of all parties",in order to ensure the effective implementation of democratic legislative principles. Only by doing this can one accurately grasp the objective basis,current development status and the development trends of regional economic,political,cultural and social development,and the development status,trends and demands of ethnic groups that live in different regions. In this way,one will enhance the substantive rationality of ethnic legal norms and the regulatory system and strengthen the adaptability of ethnic legal norms and the regulatory system and social development. Furthermore,since the legislation is a process of rational choice, no matter whether it is scientific legislation,or legislation by the law,or democratic legislation,it is inseparable from the guidance of scientific theory. Therefore,it is necessary to build a government-led legislative mechanism in which theoretical researchers and ordinary people can fully express respective opinions. By doing so,it will eliminate the limitations on the scientific legislation that exists in practice and which results from the differences in understanding important theoretical issues,such as the substantial connotation and basic requirements related to ethnic equality,the relationship between civil rights and ethnic rights,the connotation and function of regional ethnic autonomy,and the decision-making mechanisms for coordinating ethnic relations,and the normative nature of the system of ethnic law.