《政学私言》中的钱穆法治思想及其当代意义

Qian Mu's Thought on the Rule of Law in Private Opinion for Politics&Academics and Its Contemporary Sense

钱穆先生是文史大家,在晚年之际口授文章提及"天人合一",既是最终的文化遗命,也是对秩序法理的终极关怀。法治思考和论述在钱穆先生洋洋大观的诸多著述中并不凸显,主要存留于20世纪40年代的若干篇学术论文之中,以《人治与法治》《中国人之法律观念》《法治新诠》诸篇最具代表性,并均收入《政学私言》之中。这些篇章并非突兀论述,而是基于双重背景:其一为抗战时期的激进氛围及和平建国的多方讨论,钱穆以一家"私言"孤独而坚定地参与了讨论,为儒家论政议法立一榜样;其二为其文史研究已有规模和定见,法律秩序之思考与之密不可分,可视为一种自然而然的学术运用。在具体论述中,钱穆先生提出了中国固有法治论、中国人法律观念的五点特质以及中国法治大义的"四端说",指出法治应以"人尽其才"为首要,以"官尽其职"为支撑,以"事尽其理"及"物尽其用"为展开,法律应当宽和并以教化引导为正面,不可一味追求功利惩罚之法家境界。钱穆先生的法治论述在最激进的时代氛围中发出保守理性之声,对于当时和当代之法治思想、制度的反思和调校具有重要的理性批判意义,也对当代中国的国家治理现代化与全面依法治国起到一定的思想资源和制度路向的引导作用。

Mr Qian Mu was a famous thinker on culture and history,whose oral article at his old age mentioned“Harmony of Man with Nature”———which was not only the final cultural mission,but also the extreme care for order jurisprudence.Thought and discourse on rule of law are not outstanding in his huge books,of which refer to several articles in 1940s like Rule of Man and Rule of Law,Legal thought of the Chinese People and New Interpretation on Rule of Law.These articles are collected in his book Private Opinion for Politics&Academics.They are not isolated expression,but based upon double backgrounds:first,there were radical atmosphere and debates on peaceful state building,Qian Mu put forward his“private opinion”to participate in the debates,which could set up a model for Confucian Politics;second,his studies in culture and history had own scale and opinion,which necessarily linked to the legal order,and he expressed his legal thought naturally.In his specific expression,Mr Qian Mu put forward theories on Chinese own rule of law,five features for the Chinese people's legal idea and the key meanings of four terminals.He pointed that the rule of law should take“full use of ability”as first value,take“full use of officials”as supporting basis,take“full use of reason”and“full use of materials”as opening framework.He argued that law should be moderate and take teaching&leading as the mainstream,not to pursue the punishmentbased system rooted in Legalists.Qian Mu's legal discourse expressed voice of conservative reason in the atmosphere of the most radical age,which has critical sense for rule of law that time and today,further provides leading clues of thought and institution to overall national governance according to laws.