中国政治思想史上德刑关系及其价值探究

Exploration of the Relationship between Morality and Punishment and their value in the History of Chinese Political Thought

德刑关系是中国历史上政治生活的重要议题之一,论及德刑关系的政治思想甚多。按历史时期可分为三个阶段:德刑思想的产生阶段——百家争鸣时期,儒家和法家分别对施行德治和"法治"的辩论;德刑思想的发展变化阶段——秦至汉初时期,秦政推行"法治",汉初的思想发展变化为德治唤起生机;逐德刑思想的渐成型阶段——汉唐时期,确立了"德主刑辅"的主调。传统的德刑关系理论有其特殊的社会和文化背景,呈现出道德法律化、"德主刑辅"正统化的特点,具有丰富的现实价值和历史延续性,对现代法律的制订具有启发意义,有助于正确认识法律和道德的关系,更好地实现依法治国和以德治国的统一。

The relationship between morality and punishment is one of the important topics in political life in Chinese history.There are many political ideas about the relationship between morality and punishment.With reference to historical period,the thought of morality and punishmentcan be divided into three stages:the stage of the emergence,i.e.,the period of the Contention of a Hundred Schools of Thought during which the Confucianists and the Legalists carried out debate on the rule of morality and the rule of law;the stage of the development and change of the thought of the morality and punishment — the Qin and early Han Dynasty during which the Qin Government promoted the"rule of law",and the ideological development in the early Han Dynasty evoked the rule of morality;the gradual formation of the thought of morality and punishment — the Han and Tang Dynasties during which the rule of morality was dominant and the punishment was secondary.The traditional theory of the relationship betweenmorality and punishment has its specific social and cultural background.It is characterized by moral legalization and the orthodoxy of"morality dominant and punishment secondary".It has rich practical value and historical continuity,and is instructive for the formulation of modern law.It helps correctly understand the relationship between law and morality,and is greatly helpful for the unity of ruling country by law and ruling country by morality.