“以法为治”与近世儒家的治道传统

“Rule by Law”and the Confucian Tradition on Principle of Governance since the Song Dynasty

近世儒家把握到了政治社会演变的强烈法度化特征,提出"以法为治"的典型概括。他们熟用的"法"、"法度"等概念涵盖了礼乐政刑、纪纲法度。法被视为基于天理人情的体现公共实践理性的规则集群,并依据文明演进经验衍生出了一套法史观,以三代之法与后世之法的张力显示出传统根基上的因承损益机理。而基于礼与政刑的辨析,叶适等人为礼乐优先的儒家法传统强化了社会理论的阐释维度,推进了社会秩序与政刑之治的反思。依据治人与治法的关系,近世儒家还更新了对于政治类型的理论概括,承认"以法为治"、"以法为定"的客观性,从礼法与共治双重主体意义上强调治人的积极性,警惕"任法"模式的偏颇。这种法度中心、礼法本位的儒家治道论,追求一种优良的法治型态,为我们重新理解中华法系的法治资源提供了重要视角,也有益于清理现代国人片面理解法治而产生的迷思。

Confucianists since the Song Dynasty grasped the strong characteristics of legislation in social and political changes,and presented a typical generalization of'rule by law.'The concept'law'they often used covers rites and music,government decree and punishment,as well as legal institutions.'Law'was considered as a rule cluster reflecting public practical reason based on heavenly principles and human relationships,and a set of idea of legal history was derived from the experience of civilization evolvement,showing the mechanism of inheritance,gain,and loss on traditional roots from the tension between the laws of the Xia,Shang,Zhou Dynasties and laws of the later ages.The legal tradition of Confucianism represented by Ye Shi and other scholars strengthened the interpretive dimension of social theory,and advanced reflections of social orders and rule of government decree and punishment.According to the relation between rule by law and rule of man,the Confucianists admitted the objectivity of'rule by law,'emphasized the positivity of'rule of man'from the double subjectivities of rite-law and shared rule,and kept aware of bias of'depending on law.'Centered on law and based on rite-law,this Confucian theory of govenance principle pursued a fine form of rule by law,which provides an important perspective for reunderstanding China's sources of rule of law,and will also be beneficial to clear the myth generated by one-sided understanding of rule of law in modern China.