中國語境中的法治社會及其地方性

The Society Based on Rule-of-Law and its Locality in the Context of China

法治社會是在人們的社會性公共生活領域，社會主體遵循現代法治理念、精神和原則，在不違反現行法律的強制性規定即法律義務的情況下，依法自治的社會狀態。法治社會的重點在“社會”而不在“國家”和“政府”，其核心在“自治”不在“法治”，其關鍵不在“制度”而在“規矩”。地方性乃法治社會的基本特質，這一特質一方面要求確立自治在法治社會中的基礎地位並將其作為法治社會建設的核心，另一方面要求法治社會建設淡化和弱化“制度”因素而強化社會“習慣”“風俗”等非制度性社會因素的作用。

The society based on rule of law refers to the social state that in the public sphere of civil life, the social subjects follow the ideas, spirits and principles of modern rule of law, and lawfully exercise self－governance without breaching the mandatory provisions of law, ie the legal obligations. The key point of the society based on rule of law is "society", rather than "state" and "government". Its core lies in "autonomy", rather than "rule by law". Its hinge is "rules", rather than "institutions". Since "society", in its particular sense, exists in the state of " dispersion" and "fragmentization", the society based on rule of law" is bound to be characteristic of "locality". But the "local" nature of the "society based on rule of law" by no way guarantees the existence of such "local rule of law" as the "regional rule of law" or "county rule of law", nor does it entail the closely related "rule of law first" or "rule of law as priority" so called which is based on the specific local needs for law and the temporal difference of its practices. In building the rule of law, it's the "local legal system" and "locality under rule of law" that really exists and flourishes in China. The locality in the sense of administrative region has nothing to do with the local nature of the society based on rule of law. The rule of law in the uniform and comprehensive sense is not the core and key point of the society based on rule of law. To illuminate its local nature is conducive not only to a better understanding of the society based on rule of law and its relationship with the country under rule of law and the government under rule of law, but also to a more effective exploration of the approach to the coordinated development of rule of law for the country, government and society. The locality of the society based on rule of law, on the one hand calls for the establishment of autonomy as its foundation and as the core of its building, which means that in the governance system at the local level of unban community and village which integrates autonomy, rule by virtue and rule of law, autonomy should be taken as the first priority, rule by virtue the second, and rule of law the third, showing that autonomy makes the basis, rule by virtue is the guidance, and rule of law provides protection; on the other hand requires the weakening of the factor of "institutions" and the strengthening of the non－institutional social rules such as "customs" and "mores" in the building of the society based on rule of law. In a word, the society based on rule of law means the society in which the social subjects enjoy freedom to the greatest degree in the private sphere, and have adequate autonomy in the public sphere on the ground while comply with the mandatory provisions of law and perform their legal duties, and the citizens' public rationality is cultivate, their public virtue is raised, and therefore their sense of public responsibility is enhanced. Therefore, the "integrated development" of rule of law for the society, country and government is not the "same" development with the "same criterion", nor is the "uniform stepped" development with the "uniform speed". Rather, It's the "coordinated" development based on dissimilarity and diversity with each locality, based on its own particularity, having its own priority, rhythm and specific ways and methods in dealing its specific affairs. In a sense, the country under rule of law and the government under rule of law should be built with the constructive rationalist approach, while the society based on rule of law should development with the evolutionary rationalist approach.