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参考资料
A
法的作用
http://www.zixishi.cn/sikao/book.php?id=7
（一） 法的规范作用 (760)
法的规范作用是法自身表现出来的、对人们的行为或社会关系的可能影响。
１．指引作用。法的指引作用表现为：法律作为一种行为规范，为人们提供某种行为模式，指引人们可以这样行为，必须这样行为或不得这样行为，从而对行为者本人的行为产生影响。法对人们行为的指引，也相应有两种方式：
（１）确定的指引。
（２）有选择的指引。
２．评价作用。法的评价作用表现在：法律对人们的行为是否合法或违法及其程度，具有判断、衡量的作用。
３．预测作用。法的预测作用，也是法的可预测性，表现在：人们可以根据法律规范的规定可事先估计到当事人双方将如何行为及行为的法律后果。
４．强制作用。法的强制作用，亦即法的强制性，表现在：法为保障自己得以充分实现，运用国家强制力制裁、惩罚违法行为。
５．教育作用。法的教育作用表现在：通过法律的实施，法律规范对人们今后的行为发生直接或间接的诱导影响。
（二） 法的社会作用 (698)
法的社会作用是法为实现一定的社会目的（尤其是维护一定阶级的社会关系和社会秩序）而发挥的作用。按照马克思主义法学观点看，在阶级对立的社会中，法的社会作用大体上表现在两个主要方面：
１．法在维护阶级统治方面的作用
（１）调整统治阶级与被统治阶级之间的关系。
（２）调整统治阶级内部的关系。
（３）调整统治阶级与其同盟者之间的关系。
２．法在执行社会公共事务方面的作用
社会公共事务是相对于纯粹的政治活动而言的一类社会活动。其特征是：这些事务的直接目的并不表现为维护政治统治，而在客观上对全社会的一切成员均有利，具有“公益性”。调整社会公共事务的法律，在主要方面体现着社会性（非政治性），但按照马克思主义法学的观点：它在本质上与法在维护阶级统治方面的作用并不矛盾。因为，至少从统治阶级的角度看，调整和维护社会公共事务方面的法律，在根本上与维护政治统治是一致的。
（三） 正确认识法的作用 (598)
1.法的作用的重要性
在法律社会中，法的作用是不容低估的：法以其独特的方式对人类生活发生着重要的影响：首先，自从有了国家之后，法律在人类社会中扮演的角色愈来愈重要，逐渐代替了宗教、道德、习俗等社会规范在调整人们的行为和社会关系中原有的影响力，成为最主要的社会调整手段。其次，法律是社会运动和发展的最重要的稳定和平衡的工具，它以其稳定性和可预测性为激变的社会生活确立相对稳固的规范基矗第三，法律具有其他社会规范所不具有的优点，例如它的国家强制性、权威性、公开性、程序性等等。
２．法的作用的有限性
法并非无所不能，它也有其有限性，表现在：
１）法只是众多社会调整手段中的一种。
２）法作用的范围不是无限的，而是有限的。
３）法自身特点而产生的有限性。
B
试论法律行为的社会控制
http://www.chinaue.com/html/2005-11/200511301412392425.htm
法治社会也必然要求它的成员遵守法律法规。只有在社会大多数成员都能够守法的条件下，社会本身才能正常运行，这是显而易见的。
但是，在社会生活中，人们之所以服从并遵守法律，其动机却是很不相同的。
概言之，有三类不同的守法动机，一是行为人出于对某种外在因素的考虑，如出于畏惧和避免惩罚、出于社会压力、出于追求个人利益寻求社会报偿的功利目的等而守法；二是行为人出于习惯而守法；三是行为人出于对法律的高度认同而守法。
第一二类守法动机策动下的守法行为均是外部原因所致，行为人并不是真正地因信服和尊重法律而守法，这种守法行为具有功利性、被迫性与盲目性。一旦这些外部原因消失，守法行为也是不复存在了。只有第三类守法动机驱动的守法行为才是行为人出于对法律的信念和良知而自觉并主动地遵守法律，因而是一种理想的守法状态。
法律社会化不仅要求社会成员的实际行为或外显行为与法律的要求一致，更为重要的是要求社会成员把法律规范内化于自己的主观意识之中、成为自己价值观念的组成部分。这样，由法律规则、法律原则和法律概念组成的法律规范便从国家的外在宣告转化成为社会成员的内在行为动机，从客观的行为模式转化成为社会成员的主观行为标准，法律所体现的原则、精神和价值获得了社会成员的高度认同。于是，遵守法律规范就不再是迫不得已而为之的行为，人们也就不再把守法看成一种负担，而是看作自己生活方式的内容之一，看作是自己作为社会成员所应尽的道德义务。
法律社会化的根本目的在于，塑造健康的社会理想的法律人格。所谓法律人格，是指个人在法律社会化过程中，由于法律规范（包括规则、原则、概念）、法律价值和法律精神内化为个人的思想、意识和观念之中而形成的比较稳定的、定型化的、具有法的属性或因素的心理特质和性格特征的总体。换句话说，法律人格就是个人在法律社会化过程中逐渐成熟且模式化了的法律思维方式和法律行为方式的总和。
任何性质的法律社会化，都自始至终以理想的法律人格的培养与塑造为目标。但所谓理想的法律人格绝不是超历史、超阶级的，它指的是符合特定社会统治阶级的根本利益，因而为统治阶级所许可、所期待并体现着该社会法的精神和价值的法律人格。
（1）主体意识。个人都自己意识到自己的人身是自由的，与他人不存在任何形式的人身占有或人身依附关系，自己完全能够为自我作主进行行为选择，即意识到自己具有独立的人格和地位。这种主体意识表现在政治生活与法律生活中，就是公民意识。具有这种意识的人确知并相信自己就是政治生活与法律生活的参与者，享有政治上和法律上的权利，同时也必须履行政治上和法律上的义务。
（2）权利意识。个人既然承认自己是社会的主人，是社会活动的主体和社会关系的参与者，他也就必然会了解并坚信自己所具有的权利，并通过主动积极的行为选择努力地行使权利，实现自己的正当利益要求。同时，作为社会活动的主体，他在意识到并努力实现其权利的同时，也意识到自己还必须向社会和他人履行特定的义务。在法治社会中，既不允许只享受权利而不履行义务的特权现象存在，也不允许只尽义务而不准享受权利的奴役现象有安身立命之所。
（3）责任意识。个人对自己出于自愿选择而作出的行为负责，并自觉主动地承担由此而来的后果，而不是故意推脱和逃避行为的责任或责任转嫁于他人。正如有些学者所指出的，“人格是能负责任的人。不能感觉到责任的人不是人格。”“由于人格具有区别自己和他人的自我意识，由于它同活动状况结合在一起而自觉地支配自己的身体，因而它是能够在某种意义的联系中把自己的一切活动统一起来的、自由的、有个性的存在。正因为如此，它又是能够在共同体中生活、发挥一定作用
C
人的性格是怎样形成的
http://www.sport.org.cn/quanmin/ys/kj/2004-11-04/376264.html
性格是怎样发展成熟的呢？它要受到哪些因素的影响？或者它有无变化？
这些是心理学研究的一个重要方面，也是心理学爱好者所关心的问题。性格的发展、形成及变化，和人的遗传、环境等因素有着密切的关系。
遗传因素通过什么途径来影响人的性格？这是一个非常复杂而争议颇大的问题。一般理论都倾向认为，遗传因素通过气质和智力而影响人的性格。在遗传因素的作用形成的气质，按照自己的活动方式，使性格具有独特的色彩。
例如同样是助人为乐的性格特征，多血质的人在帮助人时动作敏捷、热情溢于言表，而粘液质的人则沉着冷静，情感蕴含在心。气质为人的高级神经活动类型所决定，所以，一开始气质就影响性格形成和发展速度。
遗传因素对智力的影响，早已为詹森研究证明了。不论儿童是由生身父母还是由收养或寄养家庭抚养，他们和生身父母之间在智商上总有显著的相关。詹森把此归因于遗传对智力的影响。进而言之，智力和性格都受高级神经活动的特性和类型的影响，而智力对人性格形成是有作用的。这作用在人的发展过程中显示出来。
人们运用自己的聪明才智，掌握相应的知识和技能，冷静地审时度势，使自己的行为符合客观规律，这样就会促使自己勇于克服困难，在艰难险阻中表现出自觉、大胆、果断和坚毅等良好的性格特征。因此大凡政治家、发明家、作家、艺术家，虽然从事不同的职业，但他们都兼有高度发达的智力、创造力和优良的性格特征。
性格不但受遗传因素的影响，更为重要的是，环境是性格发展形成的一个决定性因素。环境的作用主要是通过家庭、学校、社会活动圈子以及工作实践来发生效应的。
性格的成熟是相对的，绝对的成熟是不存在的。从人所处环境的变化不定来讲，性格也有一定变化，但是，除非较大刺激(比如失恋、对自己重要的人发生意外、重大失败或挫折等)，一个人的性格一旦形成也就基本稳定不变。
D
一些讨论
http://forums.philosophyforums.c ... t=289382#post289382
Ｅ,http://web311.pavilion.net/USAkingML.htm
[背景] In November, 1962, Martin Luther King was arrested and sent to prison for demonstrating against segregation in Birmingham, Alabama. While King was in prison he was criticised by a group of clergymen from Alabama who described him as a political extremist. King wrote a letter to the clergymen explaining his actions.
I was initially disappointed at being categorized as an extremist, as I continued to think about the matter I gradually gained a measure of satisfaction from the label. Was not Jesus an extremist? An extremist for love, truth and goodness.
There are two types of laws: just and unjust. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. We should never forget that everything Adolf Hitler did in Germany was "legal". Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distorts the soul and damages the personality. It gives the segregator a false sense of superiority and the segregated a false sense of inferiority.
[这一段适合两个题目。Issue178，对于法律能不能改变人性，和法律本身的性质有关。Issue17，just and unjust laws.]
I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over his injustice, is in reality expressing the highest respect for law. Of course, there is nothing new about this kind of civil disobedience. It was practiced superbly by the early Christians, who were willing to face hungry lions and the excruciating pain of chopping blocks rather than submit to certain unjust laws of the Roman Empire.
[大多数同学写赞成反抗不公正法律，这里有个反对的思路。]
Ｆ,Encarta
Law is not completely a matter of human enactment; it also includes natural law. The best-known version of this view, that God's law is supreme, has had considerable influence in the United States and other Western societies. The civil rights movement, for example, was at least partially inspired by the belief in natural law. Such a belief seems implicit in the view that law should serve to promote human dignity, as for instance by the enforcement of equal rights for all. Muslim societies also embrace a kind of natural law, which is closely linked to the religion of Islam.
Natural Law (ethics), in ethical philosophy, theology, law, and social theory, a set of principles, based on what are assumed to be the permanent characteristics of human nature, that can serve as a standard for evaluating conduct and civil laws. It is considered fundamentally unchanging and universally applicable. Because of the ambiguity of the word nature, the meaning of natural varies. Thus, natural law may be considered an ideal to which humanity aspires or a general fact, the way human beings usually act. Natural law is contrasted with positive law, the enactments of civil society.
[对于宗教和法律紧密结合的国家和地区,Natural Law的作用和对于我们普通理解的法律的影响]
Ｇ相关阅读
Source: Paine, Thomas. Rights of Man, Common Sense, and Other Political Writings. © 1995. Reproduced by permission of Oxford University Press.
From Rights of Man
Anglo-American political philosopher Thomas Paine wrote the treatise Rights of Man (1791-1792) as a reaction to British statesman Edmund Burke’s Reflections on the Revolution in France (1790). Burke argued that France should have reformed its existing government instead of undergoing a revolutionary upheaval. In contrast, Paine saw the French Revolution as an opportunity to fashion a new European government along the same lines as the fledgling democracy in the United States. In this excerpt from part two of Rights of Man, Paine asserts that the more perfect a society becomes, the less government is needed to uphold the rights to which each individual is naturally entitled.
From Rights of Man
By Thomas Paine
CHAPTER I
of society and civilization
Great part of that order which reigns among mankind is not the effect of government. It has its origin in the principles of society and the natural constitution of man. It existed prior to government, and would exist if the formality of government was abolished. The mutual dependance and reciprocal interest which man has upon man, and all the parts of a civilized community upon each other, create that great chain of connection which holds it together. The landholder, the farmer, the manufacturer, the merchant, the tradesman, and every occupation, prospers by the aid which each receives from the other, and from the whole. Common interest regulates their concerns, and forms their law; and the laws which common usage ordains, have a greater influence than the laws of government. In fine, society performs for itself almost every thing which is ascribed to government.
To understand the nature and quantity of government proper for man, it is necessary to attend to his character. As Nature created him for social life, she fitted him for the station she intended. In all cases she made his natural wants greater than his individual powers. No one man is capable, without the aid of society, of supplying his own wants; and those wants, acting upon every individual, impel the whole of them into society, as naturally as gravitation acts to a center.
But she has gone further. She has not only forced man into society, by a diversity of wants, which the reciprocal aid of each other can supply, but she has implanted in him a system of social affections, which, though not necessary to his existence, are essential to his happiness. There is no period in life when this love for society ceases to act. It begins and ends with our being.
If we examine, with attention, into the composition and constitution of man, the diversity of his wants, and the diversity of talents in different men for reciprocally accommodating the wants of each other, his propensity to society, and consequently to preserve the advantages resulting from it, we shall easily discover, that a great part of what is called government is mere imposition.
Government is no farther necessary than to supply the few cases to which society and civilization are not conveniently competent; and instances are not wanting to shew, that every thing which government can usefully add thereto, has been performed by the common consent of society, without government.
For upwards of two years from the commencement of the American war, and to a longer period in several of the American States, there were no established forms of government. The old governments had been abolished, and the country was too much occupied in defence, to employ its attention in establishing new governments; yet during this interval, order and harmony were preserved as inviolate as in any country in Europe. There is a natural aptness in man, and more so in society, because it embraces a greater variety of abilities and resource, to accommodate itself to whatever situation it is in. The instant formal government is abolished, society begins to act. A general association takes place, and common interest produces common security.
So far is it from being true, as has been pretended, that the abolition of any formal government is the dissolution of society, that it acts by a contrary impulse, and brings the latter the closer together. All that part of its organization which it had committed to its government, devolves again upon itself, and acts through its medium. When men, as well from natural instinct, as from reciprocal benefits, have habituated themselves to social and civilized life, there is always enough of its principles in practice to carry them through any changes they may find necessary or convenient to make in their government. In short, man is so naturally a creature of society, that it is almost impossible to put him out of it.
Formal government makes but a small part of civilized life; and when even the best that human wisdom can devise is established, it is a thing more in name and idea, than in fact. It is to the great and fundamental principles of society and civilization—to the common usage universally consented to, and mutually and reciprocally maintained—to the unceasing circulation of interest, which, passing through its million channels, invigorates the whole mass of civilized man—it is to these things, infinitely more than to any thing which even the best instituted government can perform, that the safety and prosperity of the individual and of the whole depends.
The more perfect civilization is, the less occasion has it for government, because the more does it regulate its own affairs, and govern itself; but so contrary is the practice of old governments to the reason of the case, that the expences of them increase in the proportion they ought to diminish. It is but few general laws that civilized life requires, and those of such common usefulness, that whether they are enforced by the forms of government or not, the effect will be nearly the same. If we consider what the principles are that first condense men into society, and what the motives that regulate their mutual intercourse afterwards, we shall find, by the time we arrive at what is called government, that nearly the whole of the business is performed by the natural operation of the parts upon each other.
Man, with respect to all those matters, is more a creature of consistency than he is aware, or that governments would wish him to believe. All the great laws of society are laws of nature. Those of trade and commerce, whether with respect to the intercourse of individuals, or of nations, are laws of mutual and reciprocal interest. They are followed and obeyed, because it is the interest of the parties so to do, and not on account of any formal laws their governments may impose or interpose.
But how often is the natural propensity to society disturbed or destroyed by the operations of government! When the latter, instead of being ingrafted on the principles of the former, assumes to exist for itself, and acts by partialities of favour and oppression, it becomes the cause of the mischiefs it ought to prevent.
If we look back to the riots and tumults, which at various times have happened in England, we shall find, that they did not proceed from the want of a government, but that government was itself the generating cause; instead of consolidating society it divided it; it deprived it of its natural cohesion, and engendered discontents and disorders, which otherwise would not have existed. In those associations which men promiscuously form for the purpose of trade, or of any concern, in which government is totally out of the question, and in which they act merely on the principles of society, we see how naturally the various parties unite; and this shews, by comparison, that governments, so far from being always the cause or means of order, are often the destruction of it. The riots of 1780 had no other source than the remains of those prejudices, which the government itself had encouraged. But with respect to England there are also other causes.
Excess and inequality of taxation, however disguised in the means, never fail to appear in their effects. As a great mass of the community are thrown thereby into poverty and discontent, they are constantly on the brink of commotion; and, deprived, as they unfortunately are, of the means of information, are easily heated to outrage. Whatever the apparent cause of any riots may be, the real one is always want of happiness. It shews that something is wrong in the system of government, that injures the felicity by which society is to be preserved.
But as fact is superior to reasoning, the instance of America presents itself to confirm these observations.—If there is a country in the world, where concord, according to common calculation, would be least expected, it is America. Made up, as it is, of people from different nations, accustomed to different forms and habits of government, speaking different languages, and more different in their modes of worship, it would appear that the union of such a people was impracticable; but by the simple operation of constructing government on the principles of society and the rights of man, every difficulty retires, and all the parts are brought into cordial unison. There, the poor are not oppressed, the rich are not privileged. Industry is not mortified by the splendid extravagance of a court rioting at its expence. Their taxes are few, because their government is just; and as there is nothing to render them wretched, there is nothing to engender riots and tumults.
A metaphysical man, like Mr Burke, would have tortured his invention to discover how such a people could be governed. He would have supposed that some must be managed by fraud, others by force, and all by some contrivance; that genius must be hired to impose upon ignorance, and shew and parade to fascinate the vulgar. Lost in the abundance of his researches, he would have resolved and re-resolved, and finally overlooked the plain and easy road that lay directly before him.
One of the great advantages of the American revolution has been, that it led to a discovery of the principles, and laid open the imposition of governments. All the revolutions till then had been worked within the atmosphere of a court, and never on the great floor of a nation. The parties were always of the class of courtiers; and whatever was their rage for reformation, they carefully preserved the fraud of the profession.
In all cases they took care to represent government as a thing made up of mysteries, which only themselves understood; and they hid from the understanding of the nation, the only thing that was beneficial to know, namely, That government is nothing more than a national association acting on the principles of society.
Having thus endeavoured to shew, that the social and civilized state of man is capable of performing within itself, almost every thing necessary to its protection and government, it will be proper, on the other hand, to take a review of the present old governments, and examine whether their principles and practice are correspondent thereto.
[ 本帖最后由 yogurt4 于 2006-2-1 20:44 编辑 ] |
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