商鞅“法治”思想与中国传统社会治理

Lord Shang's Theory of “Rule of Law”and Chinese Traditional Social Governance

商鞅是中国传统法治理论的开创者和实践者,其最大的贡献在于将法家法治思想进行系统的整合,使之成为一个体系。而且,作为一名成功的政治家,他在其政治生涯中实践了这些理论,从而使得理论具备了可行性。商鞅的"法治"是中国传统社会治理的制度实践和理论来源。然而,作为早期社会治理模式的商鞅"法治"混淆了国家与社会之间的区别,一味以强力推行实施,排除了法律的道德性,最终无法避免成为严刑酷法,给后世带来了巨大的消极影响。中国传统社会治理的得失,很大程度上是商鞅法治思想的利弊所致。这些都值得我们今天深刻反思。

Lord Shang was the pioneer of the traditional theory of rule of law. He systematically integrated the legalist thought and made it a complete theory. That＇ s the greatest contribution of Lord Shang. Furthermore, as a successful politician, he applied his theory to political practice. Thus the feasibility of his theory had been proved. Lord Shang＇ s theory was the system practice and the theoretical source of the Chinese traditional social governance. However Lord Shang＇ s theory confused the difference between state and society, so it displayed a violent role, excluding the morality of law, and at last became a harsh legal theory. Because of these points, Lord Shang＇ s theory also brought a negative influence to the later generations. So the success and failure of the Chinese traditional social governance to a large extent came from the advantages and disadvantages of Lord Shang＇ s theory. All of these deserve our profound reflection today.