论公法在中国的演进

On the Evolution of Public Law in China

公、私法的划分肇始于西方,因其契合着人的公共性和个体性而得以延续和广泛应用。公法因社会生态的不同而演变出宗教、道德、法律等不同的表现形态。公法在中国是伴随着共同体的形成而生成的。近代以前,由于公共利益遮蔽了个体利益,道德始终占据着社会的主导地位,公法在中国一直以道德的形式存在着。近现代后,社会生态的变化使得利益多元化逐渐生成,公法在中国逐渐由道德向法律转变。当前公、私法之间愈来愈呈现出融合的趋势。宪法的彰显是公、私法划分发展的一个新阶段,它使公、私法的二元对立实现了在更高层次上的统一。公法在宪法整体性的协调下,已呈现出自足与互助的同构。

The division between public law and private law began from the West, which has been continued and extensively applied because of fitting with the public nature and the individual. Public Law has showed religious,ethical and legal manifestations for the different social ecology. Public Law generated in China with accompanied by the formation of the Community. Due to public interest sheltering the individual interest, the moral had occupied the dominant social norms so that public law has been in the form of morality in China before modem. After modern the change of social ecology made public law diverse from morality to the law in China. At present the trend has shown a growing integration between the public and private law. The Constitution has developed a new stage about the public and private law, which makes the dualism between public and private law achieve uniformity in higher level. With the coordination of the Constitution, Public law has shown the configuration of self-sufficiency and mutual assistance.