| China from the1980s embarked on the road of modernization of the rule of law, has made great achievements after30years of development, the rule of law, which has been formed in2010. the legal system of socialism with Chinese characteristics. But at the same time, the rule of law in China is gradually exposed the defects of its own. The reason, the mode is closely related with our implementation of the promotion of the development of the rule of law. China in specific historical circumstances and conditions under the government-led rule of law. that is. by the authority of the state through legislative, administrative, judicial, policy measures, mandatory to social promotion of the rule of law in accordance with the planned route. This rule of law mode, although you can see remarkable results in the short term, but can not always really long time to promote the further development of rule of law in China. At this stage of the transition period, the government-led rule of law defects more revealed beyond doubt, the rule of law in China into a bottleneck. The one hand, the government-led rule of law needs to be delivered to the community through the power of the government laws and the need to strengthen government authority, invisible in the process of expansion of government power. But on the rule of law is an important point of view, the rule of law to limit state power, especially the authority of government. So this rule of law "national paradox arises mode. On the other hand, the modern rule of law inherent contradictions, the contradictions of the law is mainly reflected in the form of the rule of law and the substance of the rule of law conflicts with externally imposed legal in time conviction. These are the current mode can not overcome the rule of law in China. As many scholars have said, the main body of the rule of law is the people, is that the forces of the society itself, the moment the biggest problem of the rule of law in China is subject vacancy, government is the object of the rule of law rather than the principal object to replace the subject inevitably lead to a series of questions. Therefore the key to solve the problem in the process of the rule of law in China is to re-clarify the relationship of the government on behalf of the country and mass society, to find the main body of the rule of law, which are to lead to the rule of law.The theory has profound theoretical origins of Western civil society, civil society is a term from the Western, and possibly even in Western society, the fact that the sense of "civil society" would cease to exist, but as a society and state relations normative issues, reflecting the role of public social value of the Construction of the modern rule of law for the political state still exist, and for our country is very meaningful. After centuries of development, but no matter how development, and focus on the core of the problem is that the political relationship between the state and civil society issues. Its interpretation and understanding exactly help solve the puzzle of the rule of law in contemporary China crux of the problem. First proposed the separation of the political state and civil society since the Enlightenment thinkers Locke and Montesquieu, Hegel founded a comprehensive, systematic theory of civil society, and the subsequent public social theorists continue this tradition, despite everyone in the political state and civil society who is the master, who disputes arising from, but acknowledged the existence of their own field and scope of the civil society and the political state, must maintain a certain distance. Even to the20th century, the rise of state monopoly capitalism, the "national community" and "social state" trend deepened, from Gramsci start, the cultural ideology of civil society and the laws of the market principle of economic and social phase separation, began to form a political state, the traditional theory of the separation of economic and social and civil society.In the1980s, the theory of civil society, advancing with the times to develop a theory of the "third sector". Third sector theory is that the modern state, in addition to the two departments of the government, the market, there is a public domain, the third domain, of course, is in the third sector, which in contemporary mainly by non-governmental and non-economic social groups, associations and other voluntary organization composed of stuffed. The "third sector" and its essence should correspond to the theory of civil society and political national, economic and social, civil society "part of civil society under the rule of thirds."Third sector" alleged autonomous, non-profit, open to allow free access to the legitimate society organizations. Habermas’s theory of social organization plays an extremely important role and plays an important role. Relatively independent social organizations and political state and the market economy in the building of social organization in the public domain, exclude the interference of the power and money, and a member of the Organization may be free speech, and communicate with each other in the case of non-violence, through rational dialogue to seek a consensus, a consensus society organizations become public will then get into the national policy-making level, policies or laws. This "communicative rationality" of the public sphere is able to make up the modern representative under the simple lack of "majority rule" rational, can give the legislature to provide more and more widely, living closer to the helpful suggestions, while preventing the "majority rule "under most people trampling on the interests of the minority.The restraining power of the social organization is it a great positive significance of the rule of law in the process. Mutual restraint between the state power to limit the power itself, there is a certain paradox, it seems increasingly difficult to rely on the "right" to limit the "power", the boundaries of modern society, the public and private spheres have become increasingly blurred, the law is no longer as it was before by a clear division of public domain and private domain will be able to prevent the public power to trespass. Not to mention with the development of science and technology, the country through more advanced means of control society. the rights of the individual against the state power even more difficult. Under the new situation, through non-traditional means to limit the powers of personal dispersed forces effectively society organizations together form a powerful social force to balance the powers. The one hand, the social organization is a collection of people, a collection of resources, avoid personal selfishness, one-sidedness and lack of capacity, can assume the management of public affairs. In this way, the state power must exit from the related fields. On the other hand, developed society organizations "communicative power" can also achieve the purpose of limiting state power, although such "power" does not have a direct mandatory."Communicative power" is the comment of members of social organizations, on national policies, laws, acts, forming strong public pressure forced the country concessions "siege" of the government to exert its influence to prevent the ravages of state power.Not only have that, the social organization of the community self-typed structure also positive role. National legislation has its own limited social life is complicated and changeable, well-established law and order can not just rely on national legislation or plan arranged through the power of the government to reach. Good social order in accordance with the laws of the society itself certain self-construction and self-generating, this society organizations play its advantage. An institutionalization and order characteristic of the social organization itself weakens. On the one hand, it is a rational way to exercise their democratic right to freedom of to avoid irrational collective action; On the other hand, members recognize and strengthen the social relevance of the individual rights and cooperation, thereby overcoming the spontaneity of the rights of individuals to exercise, isolated instability. More importantly, the voluntary organization fostered a good state of order, is a cornerstone of the order of the society as a whole. Society organizations to build social and national information exchange and energy release of each platform, to ease the tension between national and personal. On the one hand, the individual by society organizations rational, legitimate participation to create activities in the formulation of the national policy and legal to go, to make their own demands upward to convey. Society, on the other hand, the people through the exchange process of the social organizations and countries to better understand the intent of the national public policy and law enforcement, to deepen understanding based on the identity of the government and national laws.For the rule of law process, commentators have suggested, must jump out of the national priorities of the government-led mode of thinking shackles, not only to consider the issue from a perfect nation-building, the legal system and institutional reform, and more to return to the true subject of the rule of law-the people the community representatives to explore new ideas. Theory on the question of the relationship of the state and society of our local resources are quite scarce, and the development and growth of society rely on social forces to promote the rule of law development across the board, or by means of the theory of civil society in the West have a certain degree of rationality. In the model foundation, according to its own national conditions may explore a rule of law development road suited to China’s national conditions. |
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