中国式法治——中国治理原型试探

Rule by Law with Chinese Characteristics——An Inquiry into the Prototype of Chinese Governance

对“礼”与“法”、“礼治”与“法治”关系的研究,近代以来有由极端对立走向最近的混淆合一之趋势。本文既包容又尝试超越既有分析架构与观念设置,努力钩沉与分析中国治理原初形态之“天治”“德治”“礼治”“刑治”“人治”诸本相;“法天为治”“以德为则”“以礼为法”“以刑卫法”“人治为要”诸法则;诸要素之间彼此相互关联融合一体,对中国的长治久安关系重大、意义深远,具有法原般的地位与价值,构成“中国式法治”;它的核心,是以刑法为卫、以人治为要的德礼之治,后世归结为“礼治”。

The perception of the relationship between“rites”and“law”and between“rule by rites”and“rule by law”have changed from the one on antagonism to the one that emphasizes fusion and hybridity in modern times.Based on the existing framework of analysis,this article attempts to transcend the conceptual settings and to investigate and analyze the original forms of these concepts in“rule by heaven,”“rule by virtue,”“rule by rites,”“rule by punishment,”and“rule by man,”and of principles of Chinese governance including“rule by heavenly principles,”“behave by virtue,”“rites as law,”“punishment as the guardian of the law,”“man as the essence.”All these elements are interrelated and interwoven,which are of great significance to China's long-term governance and stability,and have the status and value of original legal principle.All above constitute the“rule by law with Chinese Characteristics”.Its core is the rule of virtue and rites,which is based on the rule of taking punishment as the guardian of law and treating man as the essence.It was thus concluded as“rule by rites”by later generations.