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家庭伦理的反馈模式及其内在的孝道理念并非儒家的创设,而是被写入儒学文本的历史。它又在当代民众的日常生活中滋生出来。儒学文本上的孝道理念出现在司法判决书上,说明法官把儒学文本视为孝道理念的权威表达,并且要借用权威表达来加强判决的权威性。涉孝纠纷一旦出现就表明,仅凭自然的血缘亲情来维持代际关系并不可靠,因而权利话语和伦理话语成为民众解决代际关系问题的两种备选方案。中国何以会出现代际法律制度,仅仅只是中国的立法对中国的儒家化代际伦理制度做了法律上的修辞而已,使得权利话语优先被选只是为了促使伦理话语优先被选,继而意味着“制定法之治”与“法治国之治”两种法治观要由前者转向后者。
The feedback mode of family ethics and its inherent concept of filial piety are not the creation of Confucianism, but the history of Confucianism texts. It is also breeding in the daily lives of contemporary people. The concept of filial piety in Confucianism appears on the judicial verdict, which shows that the judge regards Confucianism as the authoritative expression of filial piety and borrows the authoritative expression to strengthen the authority of the verdict. Once the dispute about filial piety occurs, it shows that it is not reliable to maintain the intergenerational relationship by the natural kinship. Therefore, the rights discourse and ethical discourse are two alternatives for the people to solve the intergenerational relationship. The reason why China appears to have an inter-generational legal system is that merely Chinese legislation provides a legal rhetoric to China’s Confucian intergenerational ethic system, so that priority discourse of rights is chosen only to promote ethical discourse to be elected first, which in turn means that “The rule of law” and “rule of law and rule of law,” the two concepts of the rule of law to the latter from the former.