也论“先秦和秦朝法治的现代省思”——兼与高鸿钧先生商榷

A reflection of legal resources of Pre-Qin and Qin Dynasty——A Discussion with Mr. Gao Hongjun

以先秦和秦朝法治为代表的某些中国传统法治资源和西方正义法治资源对中国现代法治具有建构意义。《先秦和秦朝法治的现代省思》一文富有探讨意义,该文在继承法治之中土传统时,遗神取貌;移植法治之西方资源时,买椟还珠;选择法治之实践路径时,南辕北辙。以民主自由为核心的正义是现代法治必不可少的灵魂。

This paper discusses how the traditional Chinese legal resources represented by the laws of Pre- Qin and Qin Dynasty and the western legal resources affect modern Chinese legal construction. It also questions the argument in the article The modern examining and questioning about the laws of Pre- Qin and Qin Dynasty. It is argued that article did not pay enough attention to the spirit of the traditional legal resources while inheriting them, abandoned the essence while transplanting the western legal resources. It is also argued that the core of modern law construction is democracy and freedom.