法家思想与对中国现代法治建设的启示

发布时间：2018-06-04 12:21

本文选题：法家思想 + 法治建设　；参考：《长春工业大学》2011年硕士论文

【摘要】：人民是历史的创造者。人民对历史的创造不是随心所欲的,而是从过去继承下来的条件下进行创造。现代法治是人类文明的产物,一个国家要想走向法治,在一定程度上受其历史文化的影响。在中国传统思想中,法家以其“以法治国”,严格依法办事的精神文明于世。其中一些内容与现代法治具有一定意义上的契合,对现代法治是有所助益的。但同时我们也应该知道法家思想所确立的基本价值、立场与我们现代法治还是有很大差距。本文运用矛盾的观点,一分为二的分析了法家思想。从积极角度可以看到法家坚持“以法治国”,非常重视法律的作用,强调法的公正与公平,提倡变法革新,主张“法与时移”,以及法家严于治吏的思想；从消极方面我们可以看到法家极力的宣扬道德无用论,认为人的本性是恶的,道德是产生罪恶的根源。另外,法家强调君主专政,实行愚民政策等,严重忽视民主无视人权。因此,对待法家的思想我们必须批判的继承和发展。综合法家思想的积极和消极因素,在汲取精华弃其糟粕的过程中,我们必须将其法治思想与现代法治区别开来。法家对法律作用高度重视,尤其强调法律在政治和社会中影高度规范化的运行,这些都是与我国当前建设现代法治相通的地方,对推动社会进步有积极的作用。但法家法治思想与现代法治理念之间也有不可调和之处。从根本看来,法家“法治”与现代法治有本质的不同,二者所维护的阶级统治和阶级利益也有着根本的区别。法家思想的主张是为了维护封建地主阶级的君主独裁统治,这与现代法治保护人权,约束权力的精神相抵触。从这个角度上讲,法家的“法治”思想与现代法治思想是无法比拟的。我们要正视中国传统文化,从法家思想中获取我国现代法治建设的启示。在建设现代法治中,必须发扬民主保障人权,重视法律作用树立法律权威,将“以法治国”与“以德治国”结合起来。本文欲从法家思想的基本精神以及阶级局限性进行探讨和分析,从中获得对我国现代法治建设有价值的现实意义。
[Abstract]:The people are the creators of history. People's creation of history is not arbitrary, but under the conditions inherited from the past. The modern rule of law is the product of human civilization. If a country wants to move towards the rule of law, it will be influenced to some extent by its history and culture. In the traditional Chinese thought, legalists have the spiritual civilization of "governing the country by law" and handling affairs strictly according to law. Some of the contents agree with the modern rule of law in a sense, which is helpful to the modern rule of law. But at the same time, we should also know the basic value established by the Legalist thought, the standpoint still has the very big disparity with our modern rule of law. This article uses the contradictory viewpoint, divides into two to analyze the legalism thought. From a positive point of view, we can see that Legalists insist on "governing the country by law", attach great importance to the role of law, emphasize the justice and fairness of law, advocate reform of law, advocate "law with the time", and the thought that the legalists are strict in governing officials; On the negative side, we can see that the Legalists preach the theory of moral uselessness and think that human nature is evil and morality is the root of evil. In addition, legalists emphasize monarchy and folly policy, ignoring democracy and human rights. Therefore, we must critically inherit and develop the thought of the Legalists. In the process of absorbing the essence and abandoning the dross, we must distinguish the thought of ruling by law from the modern one. The legalists attach great importance to the role of law, especially emphasize the highly standardized operation of law in politics and society, which are all connected with the construction of modern rule of law in our country, and play a positive role in promoting social progress. However, there are some irreconcilable points between Legalist's thought of ruling by law and modern idea of ruling by law. From the fundamental point of view, the legalist "rule by law" is essentially different from the modern rule of law, and the class rule and class interests maintained by them are also fundamentally different. The idea of Legalist thought is to maintain the monarch dictatorship of feudal landlord class, which conflicts with the spirit of protecting human rights and restraining power by modern rule of law. From this point of view, the Legalist's thought of "rule of law" is incomparable to modern thought of rule of law. We should face up to the traditional Chinese culture and get the enlightenment of the construction of modern rule of law from the thought of Legalists. In the construction of modern rule of law, we must carry forward democracy to protect human rights, attach importance to the role of law and establish legal authority, and combine "governing the country by law" with "governing the country by virtue". This paper attempts to explore and analyze the basic spirit and class limitation of Legalist thoughts, and to obtain valuable practical significance for the construction of modern rule of law in China.
【学位授予单位】：长春工业大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D920.0;D909.2

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