Conceptual analysis of modern legal consciousness
The rule of law in China is not feasible only by tradition. First of all, we should know what kind of legal awareness we need and what kind of legal awareness can promote the rule of law in China. The connotation of modern legal consciousness can be said to be extremely rich. As an important aspect of the progress of modern human civilization, modern legal consciousness is a subjective psychological reflection of the rationality of the external form and internal value of the current legal system based on modern legal practice. It is not only the ideal pursuit of perfect legal form, but also the true embodiment of modern legal spirit. Although people still agree that law is a ruling means and a necessary tool of repression (which is also a result of our traditional legal education), law is no longer just a vassal of rights. In people's minds, the value of law is reflected in the combination of justice, fairness, order, security, wealth, efficiency, human rights and other factors. [1] However, from the perspective of social group consciousness, people's understanding of the true value of law is still in the "primary stage", which is still far from the concept of a country ruled by law. People's choice of legal value is not in place. For most people, the law is still just a tool (in other words, it is used when it is useful, and it is shelved or even evaded when it is useless), far from becoming a part of people's emotions. In my opinion, modern legal consciousness should at least include the following four aspects:
(A) the concept of faith
American scholar Pahlman said: "The law must be believed, otherwise it will be useless." [2] The law in name only lies in not being believed. When the law exists in name only, the rule of law will inevitably be replaced by the rule of man. The purpose of justice and law is the inherent requirement that law becomes the object of belief. People are convinced of law because it contains people's belief that law, as the embodiment of social justice, will surely defeat evil and make society a humane, reasonable, just, free, equal, orderly and happy society. It is precisely because people have such faith or belief in the law that countless kind people will pursue social justice persistently and the implementation of the law will finally be realized.
(b) Awareness of rights
In traditional legal thought, the consciousness of rights is extremely poor, while the thought of duty-oriented is extremely rich. On the contrary, the basic content of the socialist constitution and the rule of law is rights. It is necessary to cultivate and establish that people are the main body of society and enjoy all kinds of political, economic and social rights, clarify the legitimacy and feasibility of rights, boldly exercise all legal rights and actively resort to judicial procedures when they are violated, while respecting the legitimate rights of others.
(C) sense of contract
Modern society emphasizes contract, which requires independence, equality, honesty and credit, and autonomy of will, reflecting the inevitable requirements of the development of commodity economy. [3] The exchange activities of commodity market economy are linked by contracts, which are characterized by equality, autonomy, voluntariness, mutual benefit and mutual restraint. Its legal significance lies in making people clearly understand their legal functions by clarifying the rights and obligations of both parties to the contract, so as to effectively choose their own behaviors. Contract consciousness is an indispensable legal consciousness for establishing and perfecting China's socialist market economy. At the same time, contract consciousness is also an important ideological basis of national democracy and rule of law. The popularization of contract consciousness will make the whole society full of vitality and necessary constraints, thus achieving a harmonious and orderly state.
(D) a correct sense of litigation
Due to the influence of traditional legal culture, people have deep prejudice against litigation. Whether it is just or not, it is regarded as a disgraceful thing, which often links litigation with punishment. This kind of legal consciousness has greatly influenced people to solve various social contradictions and disputes through proper legal procedures, thus losing the powerful protection of their own rights and interests by using the law. However, in modern society, especially in the modern society of marketization, democratization and rule of law, it should be the most formal way to solve disputes through judicial channels, that is, through litigation, because judicial institutions can provide relatively fair results for the parties to disputes. Social order is a kind of legal order. If we only solve social contradictions through improper and illegal ways, it will often destroy the normal legal order. Therefore, establishing a correct concept of litigation is not only the need to safeguard personal interests, but also the need to maintain normal social order.
Second, the significance of cultivating modern citizens' modern legal consciousness
(1) Modern legal consciousness is the ideological basis for strengthening legislative work and promoting legislative perfection.
The formation and perfection of a country's laws depend on the social economic foundation and social needs, but this cannot deny the dynamic role of legal consciousness in social legislation. On the contrary, modern legal consciousness plays an important role and significance in legislative work. Only with modern legal consciousness can we accurately grasp the legislative opportunity, formulate, amend, supplement and abolish laws in time, and truly achieve the synchronous development of law and society; Only with modern legal consciousness can we ensure the democratization of legislation and ensure that the law truly reflects the will and interests of the people; Only with modern legal consciousness can we ensure the quality of legislation and make the legal form and substance meet the requirements of the rule of law.
(2) Modern legal consciousness is a necessary ideological condition for correct law enforcement and judicature.
Law enforcement and judicial personnel can truly understand the essence, function and role of law, accurately understand the meaning and content of law, truly understand and grasp the spirit and purpose of law, and accurately apply the law; Only when law enforcement officers and judicial personnel have modern legal consciousness can they correctly establish their own status and properly handle the relationship between power and rights, rights and obligations, and power and responsibility; Only when law enforcement officers and judicial personnel have modern legal consciousness can they truly understand and realize equality before the law. Especially in the absence of specific provisions in the law, it is more important for law enforcement personnel and judicial personnel to have modern legal awareness.
(3) Modern legal consciousness is an important ideological motive force to promote citizens to consciously abide by the law.
The realization of law depends not only on the coercive power of the state, but also on the conscious compliance of citizens and social organizations. If a country's laws are mainly enforced by state coercion, it is not the rule of law in the modern sense. The level of citizens' legal consciousness directly affects their compliance with the law. First of all, only when citizens have modern legal consciousness can they get rid of the traditional psychology of being afraid and disgusted with the law and actively learn and understand the law, thus improving their legal consciousness. Secondly, only by learning and understanding the law can citizens accurately grasp the content, spirit, value and purpose of the law and understand the significance of consciously obeying the law. Thirdly, only when citizens have modern legal consciousness can they consciously abide by the law, correctly exercise their legal rights and fulfill their legal obligations. Finally, only when citizens have modern legal consciousness can they use the law to safeguard their legitimate rights and interests and consciously fight against illegal and criminal acts.
(D) Modern legal consciousness is the ideological guarantee for effective legal supervision.
Legal supervision is the key and guarantee to realize the rule of law. Without effective legal supervision, there is no rule of law. Whether the legal supervision is effective is restricted by the system, the system and even the facilities and institutions, but the legal awareness of citizens is also the key factor affecting the legal supervision. Only when the subject of supervision has modern legal consciousness can he consciously carry out legal supervision; Only when the subject of supervision has modern legal consciousness can he supervise according to law and ensure the legitimacy and effectiveness of supervision.
(5) Modern legal consciousness is the spiritual power and internal pillar of the rule of law.
The construction and practice of the rule of law in a country is always carried out under the guidance of some legal consciousness, and the realization of the rule of law depends on people's consciousness, that is, on citizens' modern legal consciousness.
Third, the current situation of China citizens' legal consciousness.
The social transformation in contemporary China has laid a solid foundation for the modernization of China citizens' legal consciousness and injected a strong impetus. With the establishment of the general plan of "ruling the country according to law and building a socialist country ruled by law", the legal system construction in China has shown great innovation and even modernization, and the legal consciousness of contemporary China citizens has gradually modernized with the development and perfection of the socialist market economy. However, it should be noted that in the period of social transformation, especially in the competitive process of market economy, the modernization process of China citizens' legal consciousness is full of contradictions and conflicts due to the drive of personal interests, the influence of traditional legal cultural concepts and the distortion of the legal spirit of market economy, the inability to systematically and comprehensively grasp and understand foreign cultural concepts, and various drawbacks in social life and legal practice.
(1) The establishment and cultivation of legal consciousness is superficial, one-sided and scattered, lacking rational understanding of law. On the one hand, people want the law to enter their own lives; On the other hand, many people hold a one-sided attitude towards the law, demanding that the law protect themselves, but ignoring the equality of legal protection and arbitrarily infringing on the legitimate rights and interests of others or countries for their own selfish desires. For example, due to one-sided understanding of the selfishness of the market economy, for one's own self-interest, he does not hesitate to sacrifice the interests of others, collectives and countries, regards others and countries as tools to realize his own interests, and adopts various improper and illegal means to seek violence, even reaching the point of committing crimes; Due to the misunderstanding of the market economy and the principle of modern legal equality, they often demand equality for themselves, not for others, and demand that their rights should be recognized and protected, but they cannot treat the interests and rights of the state, the collective and others equally, and even think that the state property "takes nothing" and so on. All these show that quite a few people's understanding of the law is only in a one-sided, fragmented and emotional stage, and it is also a one-sided understanding and distortion of the modern legal consciousness required by market economy and democratic politics.
(B) Know something about the law, and initially form legal values, but the evaluation is not high.
With the construction and gradual improvement of modern legal system and the popularization of legal education, people have generally realized that law should be independent and supreme, and it is no longer just a vassal of power. However, from the perspective of social group consciousness, people's recognition of the true value of law only stays at the level of general norms, paying little attention to the requirements of law for freedom and rationality, and paying little attention to the content and form of law in state structure, political system and government activities. The relationship between law and power cannot be completely divorced from the traditional view, and quite a few people think that power can often go beyond the scope of law without restraint; They are more willing to take a wait-and-see attitude towards major political issues and have lower expectations for legal relief. This is reflected in the contradiction between people's understanding of the supremacy of law and the lack of legal trust. The supremacy of law means that the law is in the highest position in the social adjustment system, realizing the comprehensive control and management of social life by law, and no one or organization is allowed to have the privilege beyond the law and is not restricted by law; It also requires that when the law conflicts with the will of the leaders, the law must prevail. However, the concept of being above the law is not fully established in contemporary China. Some leading cadres and staff of law enforcement or supervisory organs are hard to establish the concept of "law first" because of the influence of traditional factors such as [4] "official standard", "power standard" and "rule by man". Some people even think that once they are in power, they can do whatever they want by virtue of their authority and are above the law. Due to the fact that the legitimate rights and interests of the masses cannot be effectively guaranteed in time through strict legal procedures, to a certain extent, the masses avoid litigation and tend to use traditional social adjustment methods and means to resolve disputes, further making it difficult for the masses to fully establish their sense of authority, trust and dependence on the law.
(3) The awareness of civil rights is increasing, but the legal awareness is still not firm.
In the process of using legal weapons to protect rights, once they encounter obstacles, they often choose to escape or retreat, which is due to the deep-rooted influence of traditional concepts. Although China citizens already have the universal norms and value orientation of legal concepts, this legal concept has not been effectively transformed into modern legal awareness. For many China citizens, they only appreciate the legal system and technology from the West ideologically, but when they return to real life, facing the specific interpersonal structure of China with a strong "home country" complex, a considerable number of China people have a stubborn traditional tendency. In China society, traditional consciousness such as forbearance, moderation, letting nature take its course, clan friendship, neighborhood harmony and keeping away from right and wrong still prevail. [5] Therefore, in contemporary China, especially in the vast rural areas, the masses always consciously or unconsciously accept some traditional constraints and stay away from the way of safeguarding rights through open legal procedures. On the other hand, due to lax law enforcement and a large number of judicial injustices in China, people have doubts and distrust about the reliability and effectiveness of legal rights protection, thus avoiding legal channels. [6] A just judicial system is the key link to relieve the rights of the infringed, and it is also the last hurdle to safeguard social justice and ensure the correct implementation of the law. [7] The degree of citizens' acceptance and support for the law is not directly affected by the legal provisions themselves, but directly affected by law enforcement and judicial actions and their results.
Fourthly, ways to cultivate citizens' modern legal consciousness.
(A) adhere to the principle of "law first"
Establishing citizens' trust and dependence on law is a basic connotation and requirement of modern rule of law, and it is to realize the comprehensive control of society by law, realize the rule of law and safeguard the absolute authority of law, that is, to adhere to the principle of "law first", which is not only reflected in citizens' legal concept, but also in the system to ensure the formation and development of citizens' concept of "law first". Because only when the constitution and laws in the actual operation process have the supreme status in social life can citizens be convinced that the law is the most important and fundamental evaluation standard for the behavior of social subjects, rely on the law, and believe that the law is the most important code of conduct in modern society, so as to consciously abide by the law, apply the law and protect the law. This requires that law is always in the highest position in the social adjustment system, and it is the only and final standard to evaluate the legitimacy of subjects, behaviors and interests. All citizens should act in strict accordance with the provisions of the law, enjoy rights and perform obligations according to law, and no one is exceptional, including the party and the state. The law is in charge of the distribution, guarantee and control of national political power, and no individual or organization is allowed to have the privilege above the law. In modern society, the law is equal to everyone, and the degree of equality, justice and authority is the basis for citizens to treat the law rationally, and it is also the premise for citizens to form trust and dependence on the law. In particular, whether the government abides by the law directly affects and restricts the formation and cultivation of citizens' legal authority consciousness. This requires the establishment of a complete operating system and supervision mechanism to prevent the abuse of power and safeguard the authority of the law.
(2) Constantly improving the democratic political system is the political condition for the formation of citizens' modern legal consciousness.
Compared with economic factors, political factors have a more specific and direct impact on legal progress. First of all, the concept of governing the country directly affects the status and authority of the law. For example, the tradition of "a country ruled by law" has been formed in the West since ancient Greece, and China's hard pursuit of a "moral ideal country" outside the law for thousands of years has led to the concept of "valuing ceremony over law". Secondly, in order to be widely observed, the political opinions of rulers are often concretized, fixed and organized in the form of law. From this perspective, every political progress will be manifested in law, that is, legal progress. Therefore, the modernization of legal consciousness can not be separated from the democratization of politics and the modernization of political system. This requires both political system reform and economic system reform, which are interdependent and complementary. The goal of political system reform is to build socialist democratic politics in accordance with the requirements of close integration of democratization, institutionalization and legalization.
In the construction of modern legal consciousness, the role of the government as a model of law-abiding can not be ignored. On the one hand, citizens' trust in the law focuses on whether the law itself can reflect citizens' interests and guarantee the realization of citizens' rights, on the other hand, it focuses on the implementation and compliance of the law by the state and the government. Only the respect, obedience and observance of the law itself by the state and the government can lead to citizens' belief in the law, otherwise it will destroy citizens' belief in the law and even go to the opposite side. Some scholars pointed out that "the government's law-abiding procedure is related to the success or failure of the concept of the supremacy of law to a certain extent." Due to the complete lack of legal experience, people can still believe in the value and function of law and keep hope on it. If it is a bad legal experience of "the government does not obey the law", it will fundamentally destroy the belief in the law and even make people lose confidence in the law. "[8] Therefore, the government should regulate behavior, strictly administer according to law, play the role of law-abiding model, and stimulate people's trust and dependence on the law.
(3) Inheriting and developing the essence of ideological and cultural fields is the spiritual motive force for the formation of citizens' modern legal consciousness.
As a kind of accumulation and heritage of human history and civilization, culture cannot be as distinct as some tangible things. Therefore, we should not only admit the permeability of traditional legal culture and modern legal culture, but also admit their differences. To realize the modernization of China's legal consciousness, we must do two things in culture: First, increase investment in education, do a good job in basic education and improve cultural quality, so as to promote the improvement of citizens' legal consciousness. Second, do a good job of absorbing western legal culture. The history of world legal development shows that legal transplantation is the only way for backward countries to accelerate the development of rule of law. Through the investigation of Chinese and western legal cultures, we can find that the difference between Chinese and western legal cultures and even the whole Chinese and western cultures is the difference between "ancient" and "modern". Western countries have created a developed legal culture for mankind, which is the wealth of mankind. As a whole, we are in a backward state, and we must boldly transplant its advanced achievements, so as to realize the transformation from traditional legal consciousness to modernization.
(4) To improve the operating system of the legal system, strengthen legislation, promote strict law enforcement and fair justice, safeguard legal authority and raise citizens' legal awareness, we must first formulate a convincing "good law". After the formulation of the "good law", it needs to be effectively implemented through strict law enforcement and fair judicial activities, so that the public can truly feel the authority and inviolability of the law from the process of legal operation, and thus have faith and dependence on it. On the one hand, the law should clearly stipulate the scope and conditions of its power exercise, stipulate strict legal procedures and the legal responsibilities that should be borne if it violates the scope or legal procedures stipulated by the law; On the other hand, it is necessary to improve the supervision over the exercise of power by law enforcement and judicial organs. It should include multi-faceted and multi-level supervision. First of all, improve the national procuratorial supervision system, the establishment of procuratorial organs and the effective exercise of their powers, so that they can effectively play the role of special state supervision organs. Secondly, law enforcement agencies and judicial organs supervise and restrict each other. Law enforcement is the direct implementation of the law, and the judicial organs judge specific cases by applying the law, and effectively supervise and remedy the abuse of power or procedural violations by law enforcement organs. On the other hand, the law enforcement administrative organ can apply to the procuratorial organ for protest, remedy the unfair judgment of the court, the wrong application of the law, and the illegal trial procedure, and correct the judicial injustice in time. Third, increase the channels for ordinary people to supervise and complain about the illegality and injustice of law enforcement and judicial organs in exercising their powers, such as setting up a special department independent of other administrative and judicial organs to accept complaints from the masses and strengthening the supervision of news and public opinion. , so as to enhance the enthusiasm of the broad masses of people to love and protect the law, put the law enforcement and judicial organs in a broader supervision force, and exercise state power reasonably and legally. In addition, it is necessary to speed up the system reform and strengthen the independence of the judiciary to avoid interference and pressure from other levels.
(5) The dual mission of jurists and legal workers.
In the process of constructing modern legal consciousness, the role of jurists and legal workers is undoubtedly significant. The discussion of legal theory by jurists, the study of legal literacy of lawyers themselves, and their behaviors and attitudes in the process of legal operation play an important role in the construction of modern legal consciousness. The dual mission of jurist and legal worker In the process of building modern legal consciousness, the role of jurist and legal worker is undoubtedly significant. CCTV has a legal report column. Many jurists go to TV to explain jurisprudence through cases, which not only popularizes legal knowledge, but also spreads legal spirit and concept. The audience is wide, and its social influence and social significance cannot be underestimated. This is a good example. Lawyers should constantly improve their legal literacy. Their ideas, attitudes and behaviors in the process of legal operation directly affect the consequences of legal operation, and then affect people's attitudes and views on the law. Ordinary people may have accepted the law from an impartial judge. [9] On the contrary, the behavior of legal workers themselves is incorrect, which directly affects people's trust in the law. Therefore, the dual roles of jurist, legal worker, wise man and priest are all based on their own legal literacy and personality level.
(6) Popularizing legal knowledge is an important channel for the modernization of citizens' legal consciousness.
First, continue to do a good job in popularizing the law. With the popularization of the first five-year plan, the second five-year plan, the third five-year plan and the fourth five-year plan, citizens' awareness of the rule of law and law has been greatly improved, which has promoted the process of building a socialist country ruled by law. However, we should be soberly aware that the breadth and depth of legal education are not enough, people's legal awareness is still relatively weak, and the psychology of contempt and disgust for the law still exists to varying degrees. Therefore, our law popularization is to popularize legal knowledge first, and then popularize legal concepts. Because, only by mastering the corresponding legal knowledge can a person know what can be done, what can't be done and what is forbidden, the significance and legal consequences of engaging in these behaviors, the corresponding behaviors according to law, and the habit of doing things according to law. Second, give full play to the role of the news media, make use of various publicity and education positions such as film and television, radio, publishing and the Internet to carry out legal publicity and education activities for the society, and constantly raise the awareness of the whole society to establish modern laws under the historical conditions of increasingly developing reform and opening up. Third, make use of the legal education position of the school to train qualified legal operators and law-abiding citizens for the country, especially according to the physical and mental development characteristics of young students, and carry out targeted legal edification, so that young students can know and understand the law, enhance their legal awareness and legal concept, thus effectively curbing juvenile delinquency. This is also the legal responsibility of the school to build a country ruled by law and maintain social stability.
(seven) to strengthen the legal publicity, improve the national cultural quality and modern legal awareness.
China citizens' cultural quality is generally not high, and their legal awareness mostly stays at the level of one-sided, intuitive and fragmented understanding of the law. From the perspective of social modernization, the first and most important thing is human modernization, or the cultivation and formation of human modernization quality. Without human modernization, there will be no modernization of society, and there will be no modernization of social consciousness. Modern people's spiritual character and personality system are the reflection in the minds of modern social subjects and the subjective grasp of modern society by social subjects, which contains many contents. Modern legal consciousness is one of the most important subsystems, which is the subjective grasp of legal phenomena in modern society by social subjects and the organic synthesis of modern citizens' rationality, emotion and will to law. This is a highly comprehensive and rational requirement. Due to the deep-rooted influence of traditional ideas, it is impossible to form spontaneously among the public. State organs and legal workers must carry out extensive and in-depth legal publicity and education among the masses on the basis of reasonably constructing a relatively perfect legal system and value system, and help the masses to establish a more systematic and scientific modern legal consciousness suitable for the socialist market economy and democratic politics as soon as possible. Legal publicity and education should integrate theory with practice, so that the masses can actually see the progress and positive impact of China's legal system construction, which will be more convincing.
The construction of modern legal consciousness is a huge and complex systematic project. Because social consciousness depends on social existence, but it has its own relative independence. China's traditional legal consciousness and foreign legal consciousness will have a far-reaching impact on the reconstruction of China's modern legal consciousness. The purpose of constructing China's modern legal consciousness is to lay the conceptual foundation of the rule of law in China and promote the modernization of the rule of law in China.
References:
Wu Bin, Wang Wenwen. Contradictory Analysis of China's Legal Consciousness, Contemporary Law, No.9, 2003.
[2] Pahlman, Religion and Law, Joint Publishing Company Limited 199 1 Edition, p. 8.
[3] Xie Yutong, Peng Chengcang. Obstacles and paths to the modernization of China's legal consciousness
[4] History and Reality: Modernization of China's Law and Its Significance, Jurist,
[5] Wu Bin, Wang Guanwen. Contradictory analysis of China citizens' legal consciousness [J]. Contemporary Law, No.9, 2003.
[6] Yang Xiangyi. On the Construction of Modern Legal Consciousness [J]. Academic Exploration, No.5, 2003.
[7] Wang Jiafu. On the rule of law [J]. Legal research, 1996 No.3 。
[8] On the Concept of Rule of Law in China, China Law, 1993 No.3.
[9] "Modern legal consciousness: the basis of the modernization of the rule of law in China", Journal of Suzhou Institute of Education, March 2003, Vol.5 1 issue.