从德治到法治:中国廉政建设的必由之路

The Inevitable Way of the Construction of a Clean and Honest Government in China:from the Rule of Virtue to the Rule of Law

围绕中国廉政建设的具体路径问题,学界一向有德治和法治之争。有人主张德治,有人主张法治,有人主张德治和法治相结合。本文认为德治的各种提法,其含义始终未能超出古代儒家以德治国的水平;而法治的各种提法,必须严格区分两种含义:一种含义源自古代法家,主张君主用严刑峻法来治理臣民;另一种含义源自西方启蒙思想家,主张人民平等地订立社会契约,选举并监督自己的代表来处理公共事务。作为执政理念,只有法治的第二种含义才属于现代政治文明,有望从根本上解决廉政建设问题。

The scholars always have different opinions regarding the rule of virtue or rule of law on how to build a clean and honest government in China. Some scholars support the rule of virtue, some call for the rule of law, while others argue to com-bine the two. This paper holds that no new ideas, as for the rule of virtue, have been brought out to surpass what the ancient Confucian scholars had said. Regarding the rule of law, it is necessary to distinguish strictly between two different meanings. One derives from the ancient Legalist scholars, arguing that the ruler should rule his subjects by stern laws. The other comes from the Western enlightenment thinkers, encouraging the citizens to make social contract on an equal basis, to elect and super-vise their own representatives to deal with public affairs. As a concept of rulinng, only the latter belongs to modern political civi-lization, and can be expected to solve the problem of how to build a clean and honest government.