20世纪中国的法治概念与法家思想(一)

The Concept of the Rule of/by Law and the Legilist Thought in 20^(th) Century China

"法治"是20世纪中国法政思想的核心概念之一,从世纪初的清季修宪,到世纪末的"改革开放",都能看到"法治"一词的活跃身影。但是,该词内涵往往含混不清,不同使用者赋予其不同的甚至对立的意涵。该词最近一次的重新使用,并非始于自视以"法治"而与以前时代相区分的"改革开放"时代,而是始于"文革"后期的"评法批儒"运动。当时,"法治"被用来指称法家的政治主张并受到推崇。法家式"法治"观由来已久,梁启超以降的众多学者都阐述过这种观念。

The concept of the rule of/by law is one of the most important political concepts in 20 th century China. From the Constitution-amending movement of late Qing Dynasty in the early 20 th century, to the Reform and Opening in the end of the century,this concept had always played an important role. Like many political concepts in 20 th century China,the meaning of this word was ambiguous,and it had different or opposite meaning in different users. The wide spread of this word in China lately dose not begin with the time of Reform and Opening,but begins with the movement of Examining Confucianism in the late stage of the Cultural Revolution. Inthe context of that time,the concept of rule of/by law was used to refer to the Legilist thought,and was highly praised. With the great influence of Liang Ch'in-ch'ao,it has been widely accepted during the period of the Republic of China that the concept of rule of/by law referred to or was equivalent to the Legilist thought. Although Liang(and Hu Shih,Xiong Shili,Hsiao Kung-chuan,Ho Lin,etc which followed him) made deeper research on the complicated relationship between the modern idea of rule of law and ancient Legilist thought, with the great influence of modern nationalism and historicism,the Legilist thought became the basso continuo of the concept of rule of/by law in China in 20 th century to a great extent.