周代仁政之下法治思想系统研究

A systematic study of"the rule-by-law thoughts"under the benevolent governance of Zhou Dynasty

周代没有完整记载法治思想的史书,周代的法治思想,散见于西周的《尚书》《周礼》及东周诸子的学说中。西周鉴于夏桀、殷纣实施暴政而亡的教训,推行仁政。仁政以德治为主,也兼顾法治。法治成为周代仁政的两翼之一,表现为以仁立法,以仁司法,明德慎罚,德主刑辅。到了东周,虽然诸侯争霸、礼崩乐坏,但西周的仁政传统仍占主导地位,仁政不仅被儒家学说加以发展,也被道家学说加以补充、杂家学说加以兼取。即便法家、名家公开反对仁政德治,主张严刑峻法,也是打着仁义的旗号。在仁政之下兼行法治,或打着仁义的旗号强调严刑峻法,构成了周代法治思想的整体景观。

There is no complete record of"the rule-by-law thoughts"in Zhou Dynasty,which were scattered in The Book of Documents and The Rites of Zhou of the Western Zhou Dynasty and in philosophies or theories of the Eastern Zhou.In view of lessons learned from the deaths of Xia Jie and Yin Zhou through tyranny,the Western Zhou promoted benevolent governance.Benevolent governance is based on"rule by virtue"and also takes into account"rule by law"."Rule by law"became one of the two wings of benevolent governance in Zhou Dynasty,which was manifested as lawmaking with benevolence,judicature with benevolence,prudent punishment with bright virtue,with virtue being the principal and punishment being the secondary.Up to the Eastern Zhou Dynasty,although the princes fought for hegemony and the rites collapsed,the tradition of benevolent governance in the Western Zhou Dynasty was still dominant,which was not only developed by Confucianism,but also supplemented by Taoism and mixed by miscellaneous theories.Even legalists and famous scholars who openly opposed benevolent and virtuous governance and advocated severe punishment and harsh law,did so under the banner of benevolence and justice.The whole landscape of"the rule-by-law thought"in Zhou Dynasty was formed by applying the rule of law in the name of benevolence and justice.