略论先秦“人治”与“法治”思想的论争实质

先秦时期,儒家主张“人治”,法家主张“法治”。他们的分岐是:治理国家主要依靠什么?是道德还是法律?人治论者认为国家主要应由具有高尚道德的圣君贤人通过道德感化来进行治理。法治论者则认为主要应由掌握国家权力的人通过强制性的法律(实际上指刑法)来治理。他们在政治制度设计上虽有分歧,但在维护封建专制制度这一根本问题上是完全一致的。他们的思想分歧并非现代“人治”与“法治”思想在治国方式上的根本对立。尤其是古代法家的“法治”并非现代中国人正在建设过程中的法治,现代“法治’,是根本否定“人治”即专制的,是以“人民主权”“法律至上”“依法行政”“权利平等”为基本原则的治国方略。而古代法家的“法治”是维护专制的手段和工具。

ESSENCE OF THE ANCIENT DEBATE BETWEEN "RULING BY HUMANITY" AND "RULING BY LAW"

The Confucianists advocated "ruling by humanity", and the legalists advocated "ruling by law" in pre-Qin days. Their difference is: How should a nation be administrated, by moral or by law? Those who believed in "ruling by humanity" held that a nation should be administered by the monarchs and sages of noble qualities, so that their subjects might follow their actions. Those who believed in "ruling by law" maintained that a nation should be administered by those of political power, so that their subjects might be governed by law, ie., the penal code. Though they were different in the design of political system, but they were consistent in the maintenance of feudalist system--the Basic system. Their difference differs from the modern "ruling by humanity" and "ruling by law" in the administration of a state. The modern "ruling by law", which has shaped in the course of social progress, completely negates the tyranny of "ruling by humanity". In other words, it bases on the principles such as: "people's sovereign right" and "equality in rights " etc. The ideology of the legalist school autocratic means and tools in ancient times.