The Research On The Overlapping Consensus Of The Family Law In Contemporary China

In contemporary China,there has been a "moral misconduct" of kinship,and all factions have pointed out that the family law is "unsound in the law." The problem of the family law is the lack of stability,make it difficult for the family law to maintain the stability of its system,and the function of adjusting the society is greatly compromised.It is mainly manifested in three aspects:the naturalism tendency of the family law,the normative volatility and the status of the system undetermined.The lack of stability of relatives is the expression of social consciousness for the "low consensus" state of the family law.The reason is the conflict of various social thoughts.The complete doctrines refer to the systematic,projective social thoughts that influence the family law,mainly above:conservatism,dogmatic socialism,utilitarianism and liberalism.Because of their high degree of rationality and uncooperational,the complete doctrines has caused tremendous tension between them,and this phenomenon is more complicated in China due to historical reasons.The conflict of the complete doctrines can be abstracted into the coexistence of pluralistic systems.Rawls's "Political Liberalism" has important theoretical guiding for revealing the conflicts of the pluralistic system.The traditional social contract theory is moral constructivism,that is,the society is built on the same values.This is not only impossible,but also the cause of the multi-system conflict.Therefore,Rawls reformed the traditional social contract theory into political constructivism,that is,no longer takes the value of the metaphysics as the premise,but the premise of the reality of multiple coexistence.From the perspective of"political liberalism",the conflict between the pluralistic completeness theory will exist for a long time in the family law,and it cannot be eliminated by repressive means,but only by pursuing overlapping consensus.The overlapping consensus of the family law is the key way to solve the problem of instability.The so-called overlapping consensus is the common recognition that the complete doctrines can reach the basic problems of the family law.It's possible to achieve in the family law,and the complete doctrines support overlapping consensus on both premise and outcome.The overlapping consensus is that the substantive framework includes three aspects:the core idea is "proper prioritizes goodness",that is,the appropriate state of public life has priority over private moral expectations;the value hierarchy is based on "the curtain of ignorance".The value rank is "stable-freedom-equality".The formal rules are public rules,tolerance rules and procedural rules.The overlapping consensus has to go through three steps before it can be finally achieved,that is,modus vivendi-constitutional consensus-overlapping consensus.The overlapping consensus of the family law must respond to reality,especially the lack of stability of the family law.An empirical family law should be adopted to counter its naturalistm tendency to establish the legal priories to ethics,including both legislative and judicial aspects;A stabilized family law should be adopted to regulate the normative volatility problem,that is,to establish family stability interests.Compared with the superior position of other interests,the legal revision should conform to the value hierarchy of overlapping consensus;the issue of the relative system of the family law should be adopted,that is,the central status of the legal system of the family law should be established and the compilation of the civil code should be completed.