先秦儒家与道家的司法思想

儒家司法思想以人性论为根据,人性中趋恶的因素及国家对其予以合理限制是司法权赖以存在的前提;司法的地位在于辅助德教,司法的作用在于维护社会秩序;司法的价值一是"仁道",二是公正;司法的目标是促成德治、仁政或礼治社会的实现。先秦儒家司法思想的最大特色在于其对仁道价值的不懈追求,而这种仁道价值与今日之人道主义在关爱人、尊重人这一点上是相通的。道家基于"天人合一"的思维模式提出了人道必须效法天道的理论学说,在司法问题上也主张司法必须顺应自然法则和自然秩序,从而体现了一种自然主义的司法理念。特别是道家黄老学派经典《黄帝四经》提出的"秋冬为刑"说,后经汉代大儒董仲舒的论证而被确立为一种司法制度,一直沿用至明清。《黄帝四经》提出的"精公无私而赏罚信"和"诛禁不当,反受其殃",阐述了公正司法的重要性,体现了一种以公正为核心价值的司法理念。

The Confucian and Taoist Judicial ideas in Pre-Qing Period

Confucian ideas of justice were based on the theory of human nature,the evil factors in human nature and the reasonable limit of the country were prerequisites for the existence of judicial power;the positions of justice were to assist moral education,the roles of justice were to maintain social order;the first value of justice was benevolence,second was just;the goal of justice was to promote judicial virtue,benevolence,or to realize etiquette society.The greatest features of Confucian ideas of justice were their relentless pursuit of the value of benevolence,and such value of benevolence is the same with today’s humanitarian in loving people or respecting people.The Taoists came up with the theory that human must follow the doctrine of Heaven which was based on the theory of Harmony between Man and Nature.They advocated that people must conform to the laws of nature and nature order in judicial issues,thus reflected a naturalistic concept of justice.Especially the theory of putting punishments to autumn and winter which came from the school of the emperor Huang and Lao Tzu’s classic Yellow Emperor’s Four Canons,then demonstrated by a great Han Confucian Dong Zhong-Shu and established as a system of justice,had been in use till the Ming and Qing dynasties.The "fine selfless and punishments of public trust" and "punish improper ban,subject to its anti-calamity" brought about by Yellow Emperor’s Four Canons,explained the importance of impartial administration of justice,and reflected an idea of justice that regarded fairness as its core value.