给法家一个公允的说法——从亚里士多德对法治和人治的比较看先秦法家的“以法治国”

a Fair and Equitable Formulation to Fajia

亚里士多德在其《政治学》中对法治和人治作了系统比较,指出法治优于人治。文章以此为评判标准,对先秦法家“以法治国”思想进行了评价。在法治不受感情影响,因而更客观、公正,与法治比人治更凸显管理效率这两方面,先秦法家和亚氏是一致的。但是在立法权上二者有了分歧。亚氏认为法要由多数人制定,法家却主张法由君立,这一点决定了法家的“以法治国”只能是“形势的、浅度”法治,而亚氏的法治则是“实质的、深度”法治。

Aristotle systematically compared rule by law and rule by men in his Politics, and pointed rule by law is better than rule by men. This paper takes its view as a standard of judgment to make a judgment for Fajia＇s thoughts of pre Qin Dynasty. On the one hand, when rule by law wasn＇t affected by feelings, it would be objective and fair; on the other hand, rule by men was more effective in management to compare with rule by law, Fajia of pre Qin Dynasty had the same opinions as Aristotle in these two points. But they had very different opinions on the legislatives. Aristotle considered that the laws should be made by the majority people, and Fajia thought that the laws should be made by the monarch. This decided that ＇rule by law＇ of Fajia was only a formal and shallow rule by law. And Aristotle＇s rule by law was real and deep rule by law.