论文部分内容阅读
潜规则是一种有着久远历史的社会现象,是与显规则、尤其是法律规则相悖的规则,其与社会主流价值观念的冲突所展现的非正义性,是其与显规则、法律规则最为不同的地方,也是最不为社会接受的地方。潜规则的形成与繁盛主要依仗的是权力,潜规则的胜利是人治环境对法治理性的胜利。从法学的视角看,虽然潜规则是与显规则相伴而生的,但是,是可以通过利用法律规则的程序设计、利益导向分解和限制权力来加以控制或限制,以维护或者平衡社会公平、公正秩序的,这也正是法治需要做的事情。
The unspoken rule is a kind of social phenomenon with a long history. It is a rule contrary to explicit rules, especially legal rules. Its unjustness with the conflicts of social mainstream values is the most different from explicit rules and legal rules Place, but also the most socially accepted place. The formation and prosperity of the unspoken rules rely mainly on the power, the unspoken rules of the victory of the rule of law is the rule of man. From a legal point of view, although unspoken rules are accompanied by explicit rules, they can be controlled or limited through the use of procedural design of legal rules, profit-oriented decomposition and limitation of power so as to maintain or balance social fairness and justice Order, which is exactly what the rule of law needs to do.