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增强运用法治思维能力

发布日期:2019-05-23 11:43 代写哲学论文

  

增强运用法治思维能力

  

【摘要】文章阐述了运用法治思维能力的有效途径,分析了制约领导干部法治思维能力的主要因素,提出了具体对策和途径。

  

【关键词】 增强运用;法治思维;能力

  党的十八大以来,习总书记多次指出,各级领导机关和领导干部要提高运用法治思维和法治方式的能力。“要提高领导干部运用法治思维和法治方式开展工作、解决问题、推动发展的能力,积极培育社会主义法治文化,引导广大群众自觉守法、遇事找法、解决问题靠法,深化基层依法治理,把法治建设建立在扎实的基层基础工作之上,让依法办事蔚然成风。”所谓法治思维,是指领导干部在法治理念的基础上,运用法律规范、法律原则、法律精神和法律逻辑对所遇到或所要处理的问题进行分析、综合、判断、推理和形成结论、决定的思想认识活动与过程。这一活动与过程是建立在法治理念基础之上的,只有平时注重培养法治理念的领导干部才会不断增强法治思维。

  

培育领导干部的法治思维是一项系统工程,既需要领导干部自身的追求与学习,也需要组织的教育和培养,还需要社会的监督与约束。无论是自我生成,还是组织培养、社会监督,领导干部要提高自身的法治思维能力,必须注意以下几个方面。

  一是树立法律至上的理念。法律至上就是法律最高,反对的就是权大于法。法治是法律统治的简称,作为一种国家的治理方式,其中蕴涵着良法之治、法律至上、公平正义、权利保障、权力制约等价值取向。因此,领导干部要牢固树立法治思维,在法律的授权范围之内,按照法律的程序去思考问题,解决问题,坚决摒弃人治思想。领导干部信仰法律,就是要牢固树立法律至上的理念。要把法律的禁止视为雷池和深渊,不越一步,真正在工作生活中敬畏法律,自觉用法律规范自己的思想和行动。这并不是独善其身的谨小慎微,也不是唯唯诺诺的循规蹈矩,而是一种政治上的成熟,是做人有底线、做事讲原则、做官懂规矩的自觉体现。领导干部信仰法律,必须摒弃法律工具主义思维。当然,领导干部信仰法律,也要避免信仰的误区。无论什么样的法律都是人制定的,用语言文字表述出来的法律无论制定得多么健全和完善,也都会存在疏漏和不足。因此,法治思维强调人信仰的是法律规定中蕴藏的公平正义的价值理念,并将其内化于心,外化于行。

  二是树立依法行政的理念。依法行政,是指国家机关及其工作人员依据宪法和法律赋予的职责权限,在法律规定的职权范围内,对国家的政治、经济、文化、教育、科技等各项社会事务,依法进行管理的活动。依法行政是依法治国的核心。它要求领导干部在工作中做任何事情都要从法律的角度去分析、去思考,要把思维方式建立在法律的基础之上,把法律意识贯穿到思维方式之中,把各项行为置于法律的约束之下。作出每一项决策,不仅要考虑政治效果、社会效果,还要考虑法律效果。要牢记行政均衡原则,即要协调均衡各方的利益关系。在实施行政裁量时,必须考虑各种因素和各方面的诉求,权衡各种利益关系,以作出最佳的选择判断;既要均衡不同个人之间的利益,也要均衡公共与个人之间的利益。在注意行政行为合法性的同时,也要注意行政行为的目的、动机、方式、手段等的合理性。

  三是树立学以致用的理念。领导干部必须养成“研究问题先学法、制定政策遵循法、解决问题依靠法”的习惯,注意培养和提高正确处理实体公正与程序公正的能力。既要最大限度地追求实体公正,又要毫不动摇地强化程序公正的保障作用;既要有效遏制任何以程序公正为由掩盖实体不公的现象,又要坚决纠正任何以实体公正为由排除程序公正的做法。正确处理实质公正与形式公正的能力。既要坚持以实质公正为根本价值,又要坚持以形式公正为基本保障;既要严格依法,遵循法定程序,维护法制统一,又要充分考虑社情民意,正确行使自由裁量权,尽可能使决策结果契合社会公认的价值取向。正确处理公正与效率的能力。既要坚持公正优先,又要兼顾效率;既要明白“迟到的正义即非正义”的道理,又要深谙效率服从公正、速度服从质量的精髓。

  四是树立权力有限的理念。权力有限是现代政治民主观念在法律上的延伸,是现代民主理论的产物,是现代民主理念的集中体现。它是以人民主权论为一般理论、以分类分权和权力与权利均衡为具体法律操作技术的权力相对主义观念。权力按国家职能分工配置,权力受限制是其根本内涵。无限制的、被滥用的公权力,有悖于法治精神,有损于社会的公平与正义,势必导致对私权利的恣意侵犯。领导干部树立正确的权力观并积极践行,对于履行好岗位职责和促进国家的民主化进程具有重要意义。

  

五是树立程序公正的理念。法律对利益和行为的调整是在程序当中实现的,程序是法律制度的生命形式,要求作为公权力的行使者的领导干部,在作出一项决策的时候必须给予相对方充足的参与机会。如果其处于居中地位,更应该不偏不倚,保持中立。要通过公正地作出决定建立一种法律文化,在这种文化中,人们会感到恪守法律是每个人的责任,建立和维系这样的法律文化离不开公正的程序。领导干部手握公权力,要做确保程序公正的践行者和建立良好法律文化的培育者。

  

 

  Enhance the ability to use the rule of law

  

  

  [Abstract] The article expounds the effective ways of using the thinking ability of the rule of law, analyzes the main factors that restrict the ability of leading cadres to rule the law, and puts forward specific countermeasures and ways.

  

  【Key words】 Enhanced use; Rule of law thinking; Ability

  

  

   Since the 18th National Congress of the Communist Party of China, General Secretary Xi Jinping has repeatedly pointed out that leading organs and leading cadres at all levels must improve their ability to use the rule of law and the rule of law. "We must improve the ability of leading cadres to use the rule of law and the rule of law to carry out their work, solve problems, and promote development, actively cultivate a socialist rule of law culture, and guide the masses to consciously abide by the law, find problems by law, solve problems by law, and deepen grassroots governance. The establishment of the rule of law is based on a solid foundational work, and it is a common practice to do things according to law. The so-called rule of law refers to the use of legal norms, legal principles, legal spirit and legal logic on the basis of the rule of law. Or the problems to be dealt with are analyzed, integrated, judged, reasoned, and thought-recognition activities and processes that form conclusions and decisions. This activity and process is based on the concept of the rule of law. Only the leading cadres who usually focus on cultivating the rule of law will continue to enhance the rule of law.

  

  Cultivating the rule of law of leading cadres is a systematic project. It requires the pursuit and learning of leading cadres themselves, as well as the education and training of organizations. It also requires the supervision and restraint of the society. Whether it is self-generation, organizational training, or social supervision, leading cadres must pay attention to the following aspects in order to improve their ability to think about the rule of law.

  

  The first is to establish the concept of law supremacy. The supremacy of the law is the highest law, and the objection is that the power is greater than the law. The rule of law is the abbreviation of legal rule. As a kind of national governance, it contains the value orientation of good law, law supreme, fairness and justice, rights protection and power restriction. Therefore, leading cadres should firmly adhere to the legislative thinking, within the scope of the law, in accordance with the legal procedures to think about problems, solve problems, and resolutely abandon the idea of human governance. Leading cadres to believe in the law is to firmly establish the concept of the supremacy of law. To regard the prohibition of the law as a thunder pool and an abyss, do not go one step further, truly fear the law in work and life, and consciously use the law to regulate your own thoughts and actions. This is not a mere cautiousness, nor a singularity, but a political maturity. It is a conscious manifestation of having a bottom line, doing things, and being an official. Leading cadres to believe in law must abandon legal instrumentalism. Of course, leading cadres must believe in the law and avoid misunderstandings in their beliefs. No matter what kind of law is made by people, the laws expressed in words and expressions will have omissions and deficiencies no matter how sound and perfect they are. Therefore, the rule of law emphasizes the belief that people believe in the values of fairness and justice contained in the legal provisions, and internalizes them into the heart and externalizes them.

  

  The second is to establish the concept of administration according to law. Administration according to law means that the state organs and their staff members shall be responsible for the administration of the political, economic, cultural, educational, scientific and technological social affairs of the country within the scope of their functions and powers as stipulated by the Constitution and the law. activity. Administration according to law is the core of governing the country according to law. It requires leading cadres to do everything from their work to analyze and think from the legal point of view. It is necessary to build a way of thinking on the basis of law, to perceive legal consciousness into the way of thinking, and to put various actions in the way. Under the constraints of the law. To make every decision, we must consider not only political effects, social effects, but also legal effects. It is necessary to bear in mind the principle of administrative equilibrium, that is, to coordinate and balance the interests of all parties. In the implementation of administrative discretion, we must consider various factors and various aspects of the demands, weigh the various interests to make the best choice judgment; we must balance the interests of different individuals, but also balance the public and individual interest. While paying attention to the legitimacy of administrative actions, we must also pay attention to the rationality of the purpose, motives, methods and means of administrative actions.

  

  The third is to establish the concept of learning to use. Leading cadres must develop the habit of “learning problems first, formulating policy compliance laws, and solving problem-dependent laws”, paying attention to cultivating and improving the ability to properly handle substantive justice and procedural fairness. It is necessary to maximize the pursuit of substantive justice, and to unswervingly strengthen the guarantee function of procedural fairness; it is necessary to effectively curb any phenomenon of unfairness in procedural fairness, and resolutely correct any procedure based on substantive justice. Just practice. Correct ability to deal with substantive justice and formal justice. We must adhere to the principle of substantive justice as the fundamental value, and insist on the use of formal justice as the basic guarantee; we must strictly follow the law, follow legal procedures, and maintain the unity of the legal system. We must fully consider the social conditions and public opinions, correctly exercise discretion, and make decisions as much as possible. The result fits into a socially recognized value orientation. The ability to properly handle justice and efficiency. It is necessary to adhere to the principle of fairness and efficiency, and to understand the principle of "later justice, that is, non-justice", but also to understand the essence of efficiency obeying justice and speed obeying quality.

  

   The fourth is to establish the concept of limited power. Limited power is a legal extension of modern political democracy, a product of modern democratic theory, and a concentrated expression of modern democratic ideas. It is based on the theory of people's sovereignty as a general theory, the concept of power relativism with the separation of powers and the balance of power and rights as the specific legal operation techniques. Power is divided according to the function of the state, and the restriction of power is its fundamental connotation. Unrestricted and abused public power is contrary to the spirit of the rule of law, which undermines the fairness and justice of society and will inevitably lead to indiscriminate violation of private rights. Leading cadres to establish a correct view of power and actively practice it is of great significance for fulfilling the duties of the post and promoting the democratization of the country.

  

  The fifth is to establish the concept of procedural justice. The adjustment of interests and behaviors by law is implemented in the program. The procedure is the life form of the legal system. The leading cadres who are the exercisers of public power must give the opposing parties sufficient opportunities to participate in making a decision. If it is in a neutral position, it should be more impartial and neutral. It is necessary to establish a legal culture through a fair decision in which people feel that it is the responsibility of everyone to abide by the law. Establishing and maintaining such a legal culture is inseparable from fair procedures. Leading cadres hold public power, do practitioners who ensure procedural fairness, and cultivaters who establish a good legal culture.

  

 

  


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