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传统观点认为,西方法治思想以自然权利和社会契约为理论依据,以“权利”为本位,强调公民的平等与自由;我国传统法治思想以公法化为特征,以“义务”为本位,缺乏以人格平等为核心的法治基础。文章认为,我国传统法律中蕴含着关于权利观念的“民权”及“民本”思想,传统民权思想主张民之权利由天赋予,强调国家的合法性来自民的同意,倡导以民为本、以民为天,注重民的价值以及人与人之间的平等地位。其与西方传统法治思想虽出发点不同,但两者在内涵上是有一定内在一致性的。而挖掘和探寻本土的传统思想,亦能为推动我国现代法治进程提供依据。
According to the traditional view, the thought of the western legal system takes the natural rights and the social contract as the theoretical basis and “rights ” as the standard, emphasizing the equality and freedom of the citizens. The traditional legal thoughts of our country are characterized by the public law, with “obligations” as the This standard lacks the foundation of the rule of law centered on equality of personality. The article holds that the traditional law of our country contains the ideas of “civil rights” and “people-oriented” based on the concepts of rights. The traditional civil rights ideology advocates that the rights of the people should be given by natural means, emphasizing that the legitimacy of the state comes from the consent of the people and advocates People-oriented, people-oriented, pay attention to the value of the people and the equality between people. Although it has different starting points from the traditional western thought of the rule of law, both of them have inherent connotation in connotation. To excavate and explore the traditional thinking of the local community can also provide the basis for promoting the process of modern law in our country.