A Study Of The Rule-of-law Thinking

Thinking,in general,refers to rational thought,which means to observe,understand and judge objective reality according to logical deduction,and to express them in the form of language.Logical thinking is a thinking process based on the logical relation among facts,and it is also a process of introspection.It solves the problem by weighing a given set of facts to perceive the correlation between them.The so-called clear legal thinking means solving legal problems by using introspective mentality.Rational mentality is not a result of personal will,superstition,feelings,rumor,or unconfirmed doctrine.On the contrary,we must present reasons for our conclusions and form an opinion through logical deduction.The way we think determine how we act,so there is nothing more important than thinking,and there is nothing that has nothing to do with thinking.it sets a boundary for our choices in life.We make choices on the basis of what we learn and how we think about it.The 18 th National Congress of the Communist Party of China put forward the concept of "rule-of-law thinking " in the party's report for the first time,then it is widely talked,studied and applied in various fields,and rule-of-law thinking truly becomes a key link of the theory of rule-of-law in China.Statistics show that the rule-of-law thinking is not a new or a foreign concept,but comes from legal thinking and the concept of rule-of-law,and has its own unique characteristics.However,the previous studies haven't analyzed this subject,and rarely systemically researched the logical relations among these concepts.This paper adopts the methodology of logical analysis,semantic analysis,case analysis and empirical research of socialization.First of all,based on the previous researches and statistics of legal thinking,the notion of law ruling and thoughts on ruling by law,this paper puts forward new propositional knowledge.Besides,on the basis of the existing research,it analyzes the core concepts such as legal thinking,rule-of-law thinking,the notions of rule-of law,fali thinking and the like from the perspective of semantics;at last this paper conducts a comparative study on these concepts,then analyzes characteristics and mentality rules of the various thinking modes from the comparison,and pursues the logic simplicity of the theory according to the logic analysis of the existing theoretical propositions.The rule-of-law thinking is essentially a question of legal philosophy on how to establish social rationality.Our country's putting forward and study the rule-of-law thinking is a natural result of Chinese national conditions.The research on the concepts of rule-of-law and the study of legal methods,such as legal explanation,legal deduction and legal argumentation,etc.,provides academic resources for the study of rule-of-law thinking.But the characteristics of Chinese traditional mentality determine the current problem of rule-of-law in China is that the determination of the identity of subjects in the rule-of-law thinking(including the objects).First,complete the logical deduction part and then the dialectical mentality.That is to say,rule-of-law thinking is formal in the first place: to determine the boundaries of power,determine the boundary of power,strive to ensure the main body of public power through strict obeying of the law,determine fundamental value consensus(concept of rule-of-law notion),and lay a solid ideological foundation for reform,legislation and argumentation.Legal thinking is the basis of rule-of-law mentality,the professional thinking of law men and a strong professionalism.The essence of Legal thinking is regular thinking and right and obligation mentality.Comparatively speaking,Legal thinking emphasizes the object of thinking.In comparison with moral thinking and political thinking,it pays more attention to the logical connotation and range of law,and is concerned about what law can bring out.It emphasizes the analysis of solution to problems according to the logic of law.That is to say,legal thinking pays more attention to whether the conclusion is based on the logic of law,or pays more attention to the legitimacy of the conclusion or judgment,mainly pointing to the judicial field in both theory and practice.The rules of legal thinking include: legal discovery,legal interpretation,legal reasoning,and legal argumentation.Rule-of-law thinking emphasizes the main body of thought,focusing on the scope of the law-granted subjects,that is,more emphasis on the legality of power,on authorization by law through which we consider and solve problems.Rule-of-law thinking causes the subjects to take the initiative to think about the source of power or presume the suitable rights and its real protection,so as to solve the problem of how the thinking subjects promote the rule of law.Therefore,while the concept of rule-of-law thinking and rule-of-law style are put forward,power list,responsibility list system and negative list system emerge as the times require and spread throughout the nation.It can be said that it is the strengthening and improvement of the rule-of-law thinking that awakens the legal consciousness of power reasoning of the legal subjects.Rule-of-law thinking is the opposite of the rule-of-man thinking.In general sense,rule-of-law thinking means the rule according to law and refers to the formal rule-of-law thinking.Generally speaking,the main body of rule-of-law thinking is wider than that of legal thinking subjects.In whatever field where rule-of-man thinking can be applied,we can apply the rule-of-law thinking.If the subjects choose rule by law rather than rule by man,rely on head's will rather than individual will,democratically formulate rules,and universally observe them,then the subject is using rule-of-law thinking.Therefore,the leading cadres who observe,respect and apply the law to resolve conflicts are then applying the rule-of-law thinking;when the judges encounter strange and difficult cases,they apply legal discovery,legal interpretation and legal argumentation rules,then they are using rule-of-law thinking;when the public in the process of dealing with public affairs or right protection,apply the rules of law or formulates rules on the basis of social democracy,then what they also do belongs to rule-of-law thinking in social governance.The characteristics and advantages of the rule of law can be seen more clearly from the difference between rule-of-law thinking,moral thinking,traditional political thinking,reform thinking and transcendental institutionalism.Relative to rule-of-man thinking,moral thinking,traditional political thinking,reform thinking and transcendental institutionalism,the key words of rule-of-law thinking are: "rule by law","no violation of law","legality","reform the law" and "exclusion of obvious injustice".The basic rules of rule-of-law thinking include: the subject has the right of clear scope,he can properly choose the rule of law,comply with the rules and respect the referee.For rule-of-law thinking in general sense,there is no difference of form or essence,nor difference of being effective or bad.The use of rule-of-law thinking does not necessarily mean everything will be good.Rule-of-law thinking in the official discourse refers to the rule-of-law thinking of the leading cadres.rule-of-law thinking and legal style are the revolutions to the rule-of-man thinking.The essence in advocating rule-of-law thinking and legal style is to turn the respect for law and the fear of law into the way of thinking and behavior,whose key is to follow the rules and procedures when thinking about problems,making decisions and doing things,so as to do the statutory duty,not do the unauthorized by law,respect and protect the rights and interests of the people,and consciously accept supervision;efforts should be made to use the rule of law to unite the reform consensus,regulate the behavior of development,promote solution to conflicts and safeguard social harmony;basic concepts in the rule of law should be firmly established,such as the supremacy of constitutional law and other laws,equality before the law,possession of rights by law and use of rights by law,and abandon the thought of rule-of-man thinking and chief executive ideology,and try to create a legal environment in which problems are solved according to law and conflicts are resolved by law.The concept of rule of law is the core of rule-of-law thinking.Different ideas of the rule of law determine the different ways of rule-of-law thinking.For example,as the concept of rule of law in our country is to restrict private rights,so if the law does not allow it will be prohibited;in the era of market economy,the concept of rule of law in China is to protect private rights and restrict public power,so public power should not be used if the law does not authorize it,and for private rights it they are not forbidden by law they can be freely enjoyed.The ideas of the rule of law are different,the power reasoning will be different in the thoughts of rule of law,and the way of behavior will also be different.The rules of the concept of rule of law includes: real concept of rule of law;consideration of the social effect;discovery of the essential problem and the legal proposition that helps achieve harmony.In the practice of people's thinking,there widely exists fali thinking based on conscience or reason."Fali" is a comprehensive concept which embodies the values of law,the virtues of law and the traditions of law.There are both self-evident axioms and principles that need further demonstration.Fali is the primary premise of dialectical legal reasoning,and the discovery of Fali determines the choice of legal interpretation methods.Fali Thinking is the basis of good law and good governance,which integrates democracy,human rights,the justice,order,harmony,freedom and values into law and rule of law.The process of thinking is nothing more than the process of finding problems and solving problems.Rule-of-law thinking with the background of comprehensively promoting the rule of law in China should be in a height of law reflection,making rules clearer and making the rule of law more realistic.There are two ways of thinking between obeying rules and reflecting rules on the one hand,and seeking legal principles on the other.One way is the concretization of rule of law: from thinking to principles,rules,lists and processes,which is a process of thinking and finding truth and which allows the law to be present.The other way is the abstraction of the thinking of rule of law: from experience,rules to principles,and to thoughts or ideas.This is a process of thinking enhancement and refinement,which makes good law and good ruling possible.In some sense,if fali thinking is present extensively in China,our legal thinking can really appear in Chinese discourse so that politicians can put forward advanced and real concepts of rule of law,fali can adhere to the professional and rule-of-law thinking,and all the people including politicians and fali will better contribute to the realization of rule of law with Chinese characteristics in the near future.