传统文化中“法治”与“德治”思想的梳理及启示  

"Rule-of-law" and "Rule-of-morals" in Traditional Culture:Their Review and Enlightenment

作　　者：张书霞[1] 

机构地区：[1]中州大学图书馆,郑州450044

出　　处：《学术交流》2010年第6期37-39,共3页Academic Exchange

基　　金：河南省哲学社会科学规划项目(2008FZX005)

摘　　要：法治和德治是调整社会关系、维护社会秩序的两种根本手段,也是引导中国传统文化中关于德与法伦理辩论的主线。"德治"是儒家政治思想和伦理思想的重要内容。儒家的德治论并非简单地主张"德主刑辅",而是倡导据德而治以反对当时法家威慑主义的刑治。引道德入律法最终也起到了扼制任意立法和专擅杀戮的社会效果。汉代的引经决狱、隋唐宋明清的法律道德化都是儒家德治论文化传统的传承和发扬,符合中国传统和谐文化的大原则。战国时期法家法治思想不乏变法、务实的伦理价值,但其"法""刑"演变成为酷吏严刑的时候严重相悖于法治的固定性要求。梳理"法治"与"德治"的伦理纠结启示我们,道治和法治博弈有度,合理发挥各自作用才能保证社会主义市场经济的健康发展,促进整个民族素质的提高。Rule-of-law and rule-of-morals remain two basic methods to smooth social relationship and maintain social orders, as well as the guideline of ethic debate of morals and laws in traditional Chinese culture. ＂Rule-of-morals＂ is the key to Confucian thoughts of politics and morality, which does not simply advocate ＂educating by morality with the aim of punishment＂, protest deterrent punishment held up by Legalists at that time. And such an introduction of morals into laws is a social function of restricting arbitrary legislation and severe penalties. From the judging cases by citing from Confucian moral principles in the Han Dynasty to the legal morality of the Sni, Tang, Ming and Qing Dynasties, Confucian rule-of-morals thoughts were carried out for its accordance with harmonious principle of traditional Chinese culture. Despite reformation of legalists＇ thoughts of rule-of-law and practical value of ethics in the Warring States Period, the ＂law＂ and ＂penalty＂ at that time were degraded into hardest punishment that went against fixed requirements for rule-of-law. Reviewing the ethical tangle between rule-of-law and rule-of-morals enlightens us proper balance of their gaming and maximum of their respective advantages could ensure the sound development of socialist market economy and improvement of the whole nation.

关 键 词：传统文化 德治 法治 

分 类 号：B223[哲学宗教—中国哲学]