德刑之争的权力论述与解决方案--从孔子到董仲舒

The Power Discussion and Solution of the Debate Between Morality and Punishment-From Confucius to Dong Zhongshu

德刑之争是中国传统社会治理中的一个重要课题。从孔子到董仲舒,诸多学者都对“亲亲相隐”案有过分析论述。这一案件不仅仅是道治或法治问题,更是权力视域下的话语之争。主张法治的法家大多是在为所谓公权力辩护,而主张德治的儒家则在有意无意中保护了某种私权。然而,法家所维护的公权也常因压制人民私权而成为对君主私权的辩护,儒家在申明道德时也未必形成对公权力的绝对反抗。法家与儒家的德刑之争在汉代走向调和,董仲舒德主刑辅的治国理念便可以说是这一思潮下的产物。

The debate between morality and punishment is an important issue in the governance of traditional Chinese society.From Confucius to Dong Zhongshu,many scholars have discussed the case of concealing relatives.This case is not only a matter of morality or the rule of law,but also a dispute of discourse from the perspective of power.Legalists who advocate the rule of law are mostly defending the so-called public power,while the Confucians who advocate the rule of virtue protect some private rights intentionally or unintentionally.However,the public power maintained by legalists often become the defense of the private power of the monarch because of the suppression of the private rights of the people,and Confucianism may not form an absolute resistance to the public power when it affirms morality.In the Han Dynasty,the dispute between the legalists and the Confucianists over morality and punishment was reconciled,and Dong Zhongshu’s idea of governing the country with virtue as the principal factor and punishment as the supplementary factor could be said to be the product of this trend of thought.