对法治社会的反省

On Society of Law

当前学界大多以为我国传统政治之流弊,在于主张人治而不重法治,因此,建立法治社会,乃是现代化建设中极重要的工作。这当然是切应时弊的确论。然而,在中国思想史上,对于法治社会的质疑也很多,尤其是明末清初的一些思想家像黄宗羲、王夫之、顾炎武等对此问题有最为集中的讨论。他们基本上认为法治是必要的,但并非治国之充分条件,而且徒法不足以自行,主导法的仍是人的因素。故制法者应以百姓心为心,谋天下人之福利,勿立一家之法。执法者应宽仁、不忍、哀矜,勿以刻察为得意。对于民众,除了以法律督察纠课以外,更应注意教育。钩稽整理这些人对“法治”的反省状况,对当代法理学及政治学之建设,仍有相当的意义。

Many modern scholars attribute the problems in Chinese traditional politics to the rule of man, rather than the rule of law. Therefore, the establishment of a society of law is an important part of the Chinese modernization drive. This can be a very influential argument. However, throughout Chinese ideological history, there have been many suspicions about the rule of law, especially from the thinkers in late Ming and early Qing Dynasty. Huang Zongxi, Wang Fuzi and Gu Yanwu put forward different views on rule of law. According to them, rule of law, though necessary, is not the full requirement for state governance. And law itself can not be automatically enforced if man＇s leading role is not involved. Thus, the formulation of laws should be universally based on the interests and well-being of the people, and the law executors should be morally endowed and out of their goodness to exercise their power. In playing a supervisory role, they should focus on learning to educate the public.