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中国农村土地制度经历了从均分化土地私有制到集体所有制,再到家庭承包经营制和承包经营权物权化的复杂变迁过程,有关改革方向的论争主要存在国有化、私有化和集体化三种不同的思路。从制度德性角度分析,集体化思路是最优选择。与制度理性相对的制度德性包含政法逻辑和乡士逻辑两个方面,政法传统承载了政治意图或者意识形态,乡土逻辑背后则隐含了“天理—国法—人情”的辩证统一。合乎制度德性的地权制度必须遵守政法传统、符合乡土逻辑。我国农村土地制度改革的法律进路应该是超越逻辑和规范之上、融合制度理性和制度德性、审慎理性的政治决断。
The system of rural land in China has undergone a complex process of change from the private ownership of the land under divided ownership to collective ownership, to the household contract management system and the right to contract and management. There are mainly three kinds of nationalization, privatization and collectivization in the debate on the reform direction Different ideas. From the perspective of system morality, collectivization is the best choice. The system morality, which is opposite to the system rationality, contains two aspects: logic of politics and law and logic of countrymen. Political and legal traditions carry political intention or ideology. The logic of native language implies the dialectical unity of “natural principle - state law - human condition”. The system of land rights conforming to the system’s virtue must abide by the tradition of politics and law and conform to the local logic. The legal approach to the reform of the rural land system in our country should be beyond the logic and norms, and incorporate the political rationality of the system and the morality of the system and prudence and rationality.