法治必以立宪政体盾其后——从“商鞅难题”到“梁启超方案”

Rule of Law must Rely on Constitutional Regime:From Shang Yang Conundrum to Liang Qichao Solution

商鞅主张"以法治国",因而强调"法之必行"。但《商君书》却发现,"无使法必行之法"。特别关键的是,商鞅认为,"法之不行,自上犯之",但他最终无法解决这一制度难题,这也是传统中国无法解决的制度难题。而梁启超以现代民主立宪思想为武器,找到了"立宪政体"这一解决之法,可以视为中国现代法治的"梁启超方案"。这一方案是中国现代法治的必由之路。

Shang Yang advocated to govern a state by law,so he emphasized that law must be implemented.However,Book of Lord Shang figured out that there was no rule to guarantee all laws be implemented. Significantly,Shang Yang thought that law could not be followed especially by the superior leaders,and he could not find a solution to this conundrum ultimately. It is also a conundrum that traditional China could not solve. In contrast,Liang Qichao applied modern democratic constitutionalism as a weapon and puzzled out a solution by establishing constitutional regime. It is considered as ＂ Liang Qichao Solution＂ to modern China＇s rule of law,and this solution will be an indispensable approach to modern China＇s rule of law.