我国法治路径的务实选择及原因分析

An Analysis of the Approach Choice of Rule of Law and its Reasons in our Country

我国实行法治已成为举国上下的通识,但选择何种路径实现法治却成为我国在初创法治治理阶段的理论难题。在借鉴占主导地位的自由主义法治传统观点基础上,根据我国法治所处的初级阶段和环境态势,务实地将我国法治实现的路径选择定位为形式法治与精英法治。形式法治路径基于我国国情,其蕴涵的法治实质内容能够获得可行性辩护;精英法治路径基于人的能力差异性,并且与民主法治相容,还能以韦伯的"卡理斯玛型"自然精英要求来衡量和界定法治精英的标准,获得正当性的理论辩护。此外,比较考察自由主义两种法治观的发展路径,可以厘清和处理自由主义法治观所存疑的理论问题,即个人权利与政府权力的边际问题和个人权利与共同善的关系问题,为我国法治路径的选择消弭理论障碍。

It is a nationwide consensus that we should practice rule of law in China. But it is a theoretical dilemma that which kind of approach we ought to choose in the early state of rule of law. On the basis of classical liberal view of rule of law which dominates,according to the situation of early stage of rule of law,this article takes formal rule of law and rule of elite as the appropriate choice. The formal rule of law is justified on the national conditions and its implicated substantial content. The rule of elite approach is theoretically justified on the capacity difference,the inclusiveness of democracy view of rule of law,and measuring and defining the spirit of rule of law by the requirements of Chrisma natural elite by Weber. Besides,this article examines the two approaches of liberal view of rule of law,clarifies and solves the theoretical problems of liberal view of rule of law,namely the marginal problem between personal right and government power and the relationship of personal right and common kindness. This helps eliminate the theoretical obstacles on the choice of rule of law approach in our country.