从“法制”到“法治”的中国语境

From “Legal System” to“Ruling by Law”in a Chinese Context

中国的法治理论有其不同于西方的独特语境。现代中国法学的开端与政治情势紧密相关, 其合法性在很大程度上取决于政治情景的变换, 对政治话语的追随和演绎乃是“法治”话语表明其合理性和正当性的主要路径, 它因此而难以持守学术的独立性品格。当代中国法治理论和学说得以深入开掘和成功建构的语境, 从根本上说仍需要法学家独立人格和学术品格的培育与塑造。

Compared with that in the West, the theory of ruling by law in China emerged from a unique context. The emergenceof the science of law in modern China is closely related to the political situations,and its legality largely depends on the changes of political situations. The use and interpretation of political discourse are still the main means in which the discourse of “ruling by law”finds expression of its rationality and justice, which resultsin little academic independence. The research on the theories or doctrines of ruling by law in contemporary China and a successful establishment of its context relies on the training and molding of the personal and academic character of the jurisprudents.