荀况与韩非法律思想之比较
发布时间：2018-07-17 08:38
【摘要】：荀况作为战国时期儒家的代表人物,其对孔、孟的儒家思想当然的进行了继承与批判,我们可以称其为先秦儒家的集大成者,他在继承孔、孟“礼治”思想的基础上,同时借鉴法家的“法治”思想,创设性的提出了“隆礼重法”的礼法结合论,成为后世君主治理国家的基本方略。同时荀况对孔、孟的“性善论”进行了批判,并首次提出了“性恶论”,这在中国法律思想史上是很重要的一笔,也是荀况的法律思想的哲学基础和立足点,其以后所有的法律思想都是基于这一基本的哲学基础提出和展开的,同时荀况还首次提出了“有法者以法行,无法者以类举”的将法律与判例相结合的“混合法”概念。 韩非作为荀况的高足,在治国理政方面决断的选择了更适合当时时代背景的法家思想,在韩非看来,要想在乱世中称霸,单纯依靠“礼治”和“德治”是不可能的,所以他果断选择放弃“礼治”,实行专任统治,在他看来唯有“法治”和“重罚”才能实现君主专制。虽然荀况和韩非都极力主张维护君主专制,但是两者所主张的方法和策略有很大的不同,可以说是殊途同归。在笔者看来,韩非并没有纠缠于“性恶论”这个问题,他是站在一定高度上来看待这个问题,韩非正是基于人“好利恶害”本性才提出来自己的法律主张。他并没有像荀况一样认为人们可以通过教化改变其恶,即所谓的“化性起伪”,在他看来,人性“趋利恶害”是必然的,是不可能改变的,因此他主张利用人的这种本性来治理国家是最有效的办法。 本文通过对荀况和韩非法律思想的比较研究,在对比中找出两人的法律观点的不同,并深究产生这种不同的原因和背景,从而汲取两人法律思想中的精华,去其糟粕,为目前我国的法治化建设寻找更多的民族传统和依据。 从整体上看,本文共分为四个部分： 第一部分是叙述和介绍荀况和韩非的生平与所处的时代背景,这也是两人所提出的治国方略存在很大差异的最基本的因素,通过陈述两人所处的时代背景,为后文的叙述和阐释提供铺垫。 文章的第二部分主要是介绍了荀况和韩非的一些主要的法律思想,如荀况的“隆礼重法”思想、“人治”思想以及“德礼政刑相互为用”的法律思想,韩非的“法治”思想、“重刑论”思想,“法、术、势”相结合的思想,通过阐述两人的思想概况,为后文对两人的法律思想进行比较奠定基础。 文章的第三部分是本文的主体部分,本部分这要是介绍和对比两人的法律观点,在对比中寻找异同,通过对两人观点的立足点的对比,法治思想侧重点的对比以及两人“法治”观点的对比,深刻剖析这种差异存在的原因,为我国当前的法治建设所借鉴。 文章的第四部分主要是阐述两人思想对我国现代化建设的借鉴意义,这是出发点也是最终的目的,通过对比两人的法律思想,在对比中找出两人法律思想中适合我国当前法治建设的法律思想和制度建设,成为我国当前法治建设的民族传统和基石。 本文运用的研究方法如下： 第一,哲学方法。本文客观的评价和分析荀况和韩非法律思想的优缺点,从两方面进行分析和研究,充分运用了马克思主义的辩证唯物主义方法论,一分为二的看问题。 第二,本文充分运用对比的方法,在对比中寻找两人法律观点的异同,在异同中寻找适合中国法律发展的方向和路线。
[Abstract]:As the representative figure of the Confucianists during the Warring States period, Xun Kuang inherits and criticizes Confucius' Confucianism of Confucius and Mencius. We can call it the master of Confucianism in the pre Qin period. On the basis of his inherited Confucius and Mencius "rule of Rites", at the same time, he drew on the Legalist Thought of "rule of law" and creatively put forward the etiquette and law of "long rite and heavy law". At the same time, Hsun Kuang criticized Kong and Meng's "the theory of nature good", and put forward the "theory of sexual evil" for the first time. This is a very important point in the history of Chinese legal thought. It is also the philosophical basis and standing point of Xun Kuang's legal thought, and all the later legal thoughts are based on this one. The basic philosophical basis is put forward and unfolded. At the same time, Xun Kuang also put forward the concept of "mixed law" which combines law and precedent with the law and law.
As a high foot of Xun Kuang, Han Fei chose the legal thought that was more suitable for the time background of the time of ruling the country. In Han Fei's view, it was impossible to rely on the "rule of Rites" and "rule of virtue" by simply relying on the "rule of Rites" and "rule of virtue", so he chose to give up the "rule of Rites" and carry out the exclusive rule. In his opinion, he only looked as "rule of law" and "rule of law". "Heavy punishment" can achieve monarchical monarchy. Although Xun Kuang and Han Fei both strongly advocate the maintenance of monarchy, the methods and strategies are very different and can be said to be the same. In my opinion, Han Fei is not entangled in the question of "the theory of sexual evil". He is standing at a certain height to view the problem, Han Fei It is on the basis of human "good and evil" nature to bring up his own legal claim. He does not think that people can change their evil by teaching, that is, the so-called "pseudo - puppet". In his view, human nature "evils evil" is inevitable and can not be changed, so he advocates the use of human nature to govern the country. Home is the most effective way.
Through a comparative study of Xun Kuang and Han Fei's legal thoughts, this paper finds out the differences in the legal views of the two people, and explores the reasons and backgrounds of this different kind of reasons so as to draw the essence of the legal thoughts of the two people and go to the dross to find more national traditions and basis for the construction of the rule of law in our country.
As a whole, this article is divided into four parts.
The first part is the narration and introduction of Xun Kuang and Han Fei's life and the background of the times. This is the most basic factor that the two people put forward a great difference in the strategy of governing the country. By presenting the background of the times of the two people, it provides a paving for the narration and interpretation of the later text.
The second part of the article mainly introduces the main legal thoughts of Xun Kuang and Han Fei, such as the thought of "long rite and heavy law", the thought of "the rule of man" and the legal thought of "the mutual use of the political and punishment of virtue", the thought of "the rule of law" by Han Fei, the thought of "the theory of heavy punishment", the "law, the art, the potential", and the elaboration of the two people. The general situation of thought lays a foundation for the comparison of the two person's legal thoughts.
The third part of the article is the main part of this article. This part is to introduce and compare the legal views of the two people, look for similarities and differences in the contrast, compare the standpoints of the views of the two people, contrast the emphasis of the rule of law, and compare the views of the "rule of law" between the two people, and deeply analyze the reasons for the existence of this difference, for the present of our country The construction of the rule of law can be used for reference.
The fourth part of the article is mainly to explain the significance of the thought of the two people to the modernization of our country, which is the starting point and the final purpose. By comparing the legal thoughts of the two people, we can find out the legal thought and the construction of the legal ideology of the legal construction of the two people in our country, and become the nation of the construction of the rule of law in our country. Tradition and cornerstone.
The research methods used in this paper are as follows:
The first, the philosophical method. This article objectively evaluates and analyzes the advantages and disadvantages of Xun state and Han Fei's legal thought, and analyzes and studies from two aspects. It makes full use of the dialectical materialist methodology of Marx doctrine and divides it into two parts.
Second, this article makes full use of the contrast method to find similarities and differences between the two legal viewpoints in comparison, and seeks for the direction and route suitable for the development of Chinese law in similarities and differences.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D909.2;B222.6;B226.5
本文编号：2129834
[Abstract]:As the representative figure of the Confucianists during the Warring States period, Xun Kuang inherits and criticizes Confucius' Confucianism of Confucius and Mencius. We can call it the master of Confucianism in the pre Qin period. On the basis of his inherited Confucius and Mencius "rule of Rites", at the same time, he drew on the Legalist Thought of "rule of law" and creatively put forward the etiquette and law of "long rite and heavy law". At the same time, Hsun Kuang criticized Kong and Meng's "the theory of nature good", and put forward the "theory of sexual evil" for the first time. This is a very important point in the history of Chinese legal thought. It is also the philosophical basis and standing point of Xun Kuang's legal thought, and all the later legal thoughts are based on this one. The basic philosophical basis is put forward and unfolded. At the same time, Xun Kuang also put forward the concept of "mixed law" which combines law and precedent with the law and law.
As a high foot of Xun Kuang, Han Fei chose the legal thought that was more suitable for the time background of the time of ruling the country. In Han Fei's view, it was impossible to rely on the "rule of Rites" and "rule of virtue" by simply relying on the "rule of Rites" and "rule of virtue", so he chose to give up the "rule of Rites" and carry out the exclusive rule. In his opinion, he only looked as "rule of law" and "rule of law". "Heavy punishment" can achieve monarchical monarchy. Although Xun Kuang and Han Fei both strongly advocate the maintenance of monarchy, the methods and strategies are very different and can be said to be the same. In my opinion, Han Fei is not entangled in the question of "the theory of sexual evil". He is standing at a certain height to view the problem, Han Fei It is on the basis of human "good and evil" nature to bring up his own legal claim. He does not think that people can change their evil by teaching, that is, the so-called "pseudo - puppet". In his view, human nature "evils evil" is inevitable and can not be changed, so he advocates the use of human nature to govern the country. Home is the most effective way.
Through a comparative study of Xun Kuang and Han Fei's legal thoughts, this paper finds out the differences in the legal views of the two people, and explores the reasons and backgrounds of this different kind of reasons so as to draw the essence of the legal thoughts of the two people and go to the dross to find more national traditions and basis for the construction of the rule of law in our country.
As a whole, this article is divided into four parts.
The first part is the narration and introduction of Xun Kuang and Han Fei's life and the background of the times. This is the most basic factor that the two people put forward a great difference in the strategy of governing the country. By presenting the background of the times of the two people, it provides a paving for the narration and interpretation of the later text.
The second part of the article mainly introduces the main legal thoughts of Xun Kuang and Han Fei, such as the thought of "long rite and heavy law", the thought of "the rule of man" and the legal thought of "the mutual use of the political and punishment of virtue", the thought of "the rule of law" by Han Fei, the thought of "the theory of heavy punishment", the "law, the art, the potential", and the elaboration of the two people. The general situation of thought lays a foundation for the comparison of the two person's legal thoughts.
The third part of the article is the main part of this article. This part is to introduce and compare the legal views of the two people, look for similarities and differences in the contrast, compare the standpoints of the views of the two people, contrast the emphasis of the rule of law, and compare the views of the "rule of law" between the two people, and deeply analyze the reasons for the existence of this difference, for the present of our country The construction of the rule of law can be used for reference.
The fourth part of the article is mainly to explain the significance of the thought of the two people to the modernization of our country, which is the starting point and the final purpose. By comparing the legal thoughts of the two people, we can find out the legal thought and the construction of the legal ideology of the legal construction of the two people in our country, and become the nation of the construction of the rule of law in our country. Tradition and cornerstone.
The research methods used in this paper are as follows:
The first, the philosophical method. This article objectively evaluates and analyzes the advantages and disadvantages of Xun state and Han Fei's legal thought, and analyzes and studies from two aspects. It makes full use of the dialectical materialist methodology of Marx doctrine and divides it into two parts.
Second, this article makes full use of the contrast method to find similarities and differences between the two legal viewpoints in comparison, and seeks for the direction and route suitable for the development of Chinese law in similarities and differences.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D909.2;B222.6;B226.5
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