“以法为治”与近世儒家的治道传统

发布时间：2018-05-16 19:32

本文选题：“以法为治” + 纪纲法度　；参考：《文史哲》2017年04期

【摘要】：近世儒家把握到了政治社会演变的强烈法度化特征,提出"以法为治"的典型概括。他们熟用的"法"、"法度"等概念涵盖了礼乐政刑、纪纲法度。法被视为基于天理人情的体现公共实践理性的规则集群,并依据文明演进经验衍生出了一套法史观,以三代之法与后世之法的张力显示出传统根基上的因承损益机理。而基于礼与政刑的辨析,叶适等人为礼乐优先的儒家法传统强化了社会理论的阐释维度,推进了社会秩序与政刑之治的反思。依据治人与治法的关系,近世儒家还更新了对于政治类型的理论概括,承认"以法为治"、"以法为定"的客观性,从礼法与共治双重主体意义上强调治人的积极性,警惕"任法"模式的偏颇。这种法度中心、礼法本位的儒家治道论,追求一种优良的法治型态,为我们重新理解中华法系的法治资源提供了重要视角,也有益于清理现代国人片面理解法治而产生的迷思。
[Abstract]:In modern times, Confucianism grasped the strong legalization characteristics of political and social evolution, and put forward the typical generalization of "rule by law". The concepts of "law" and "law", which they are familiar with, cover the principles of propriety, music and punishment. Law is regarded as the rule cluster which embodies the rationality of public practice on the basis of natural principles and human feelings, and a set of historical view of law is derived according to the experience of civilization evolution. The tension between the law of three generations and the law of later generations shows the mechanism of gain and loss on the basis of tradition. Based on the analysis of propriety and punishment, Ye Shi's Confucian tradition of giving priority to ritual and music strengthens the explanation dimension of social theory and promotes the reflection of social order and governance of political punishment. According to the relationship between governing people and governing law, the Confucian school has renewed its theoretical generalization of political types, acknowledging the objectivity of "governing by law" and "governing by law", and emphasizing the initiative of governing people from the meaning of the dual subject of ritual law and co-rule. Be on guard against the bias of the "Ren Law" model. This kind of law center, the Confucian rule of law theory based on etiquette and law, pursues a kind of fine rule of law, which provides an important angle of view for us to re-understand the legal resources of Chinese legal system, and is also beneficial to clearing up the myth that modern people understand the rule of law one-sidedly.
【作者单位】：中国人民大学国际关系学院政治学系;
【基金】：国家社会科学基金一般项目“中国治道传统中的公共理念及其现代转换研究”(15BZZ016)的阶段性成果
【分类号】：B244

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