自由型法治抑或效能型法治?——中国变法时代的法治选择

Liberty-type Rule of Law or Efficiency-type Rule of Law:The Choice of the Rule of Law in Chinese Reform Era

法治并非只能与自由主义相结合,从中国特色社会主义法治现阶段的目的来看,中国的法治类型是一种效能型法治,其目的在于更有效地增强国家能力以实现民族复兴。这一目的从隐到显地体现在中共十一届三中全会到十八届四中全会的重要文件之中。从清末民初,即中国变法时代的开始,就已预示了未来中国在变法运动中的法治之路不是自由型法治,而是效能型法治。这是因为中国的变法运动对国家能力的需要远远大于对个人自由的需要。当实现富强中国的目标之后,中国特色法治文明的未来发展则应当走效能与自由相结合的道路。

The rule of law in modern times originated directly in liberalism, emphasizing the ultimate aim of personal freedom. However, the rule of law mustn＇t be combined with liberalism. The rule of law in current China is not liberty-type, but efficiency-type rule of law, which is advocated with the purpose of effectively enhancing national power and realizing national rejuvenation. This efficiency-type rule of law can be seen from a series of important documents of the Chinese Communist Party since the reform and opening of China. From the emphasis on democracy and the legal system in The Third Plenary Session of the llth Central Committee, to establishing the strategy of ruling the country by law in the 15th Central Committee, and to the decision of comprehensively promoting ruling the country by law in the Fourth Plenary Session of the 18th Central Committee, the purpose of emphasizing efficiency in the rule of law has gradually become explicit in the documents. The efficiency-type rule of law emphasizes the ability to effectively achieve the set goals. Such ability refers to the ability of the country to unite, motivate, and lead the whole society to march on to the set goals, in order to realize the Chinese dream of national prosperity and rejuvenation. Apart from the documents of the party, the editorial about the rule of law in the People＇s Daily, the outline of reforming people＇s court issued by the Supreme Court, and the outline of constructing the law-based government issued by the State Department all clearly show efficiency as the characteristic of the rule of law in current China. The characteristics of the efficiency-type rule of law in China are these= first, it values the core leadership that promotes the rule of law; second, it emphasizes the realization of the overall national goals and national power; third, it values the importance of the rule of law in ensuring the realization of national goals. Under the overall development goals of the country, the value goals of law itself are also reflected to various degrees, with fairness and justice being more highly valued than liberty and rights. The reform era of the late Qing Dynasty and the early Republic of China already presaged that the path of the rule of law in the reform movement in the future China was not liberty-type, but efficiency-type rule of law. That is because the demand for national power is much greater than that for personal freedom in the reform movement of China. The reform and governance abilities of the country are especially important for the national power of the reforming country. In order to have the ability of reform, the country needs to have the control over the society in terms of appeal, organization and enforcement. The ability of social governance is the ability to achieve order by resolving social conflicts. Both abilities need to be achieved via the rule of law. When the emphasis is put on the national power needed for the reform, personal freedom can only become secondary. Too much emphasis on personal freedom may have a negative impact on the exercise of national power. When the reform goal of national prosperity is accomplished, the rule of law in the future China should be a combination of efficiency and liberty, with liberty again being an important aim of the rule of law. That is because the revival of Chinese civilization calls for achieving comprehensive and liberal development of everyone.