论法家“法治”学说的定性问题

On the Nature-determination of Legalists' “Rule of Fa”Theory

近代以来，法家“以法治国”（《韩非子·有度》，下引该书只注篇名。类似说法亦见于《管子·明法》）、“不别亲疏，不殊贵贱，一断于法”（《史记·太史公自序》）的“法治”思想引起了学界的普遍关注。“西学源于诸子说”的盛行，使得薛福成、黄遵宪皆认为先秦法家之“法治”与西方法治殊途同归。不料这种观点引起了沈家本、严复等人的强烈批评，他们明确主张法家“法治”乃“专制之尤”，与泰西蕴涵自由、人权价值的“法治”截然不同。

The idea of Legalists' rule of Fa (law or method) is often characterized as despotism, rule by man and rule by penalty by modern academic circle in the main discourses such as the modern western regime theories and notions of sovereignty. These arguments need both further discussions based on the text material of rule of Fa advocated by Legalists and theoretical reflections on the research methods. Legalists never take the point of view on wielding power at random. On the issue of how to limit the power of sovereign, so far human society can not clear up the sources and get to the bottom of problems. Legalists have certain ideas on right and justice. The essence of Legalism concerned Fa is a general term of social rules system and its implementation methods. Legalism's Rule of Fa indeed needs to rely on formulating rules and finally establishing these rules to govern the society better.