中国法治的人文道路  

Humanistic Way of Chinese Rule of Law

作　　者：胡水君[1] 

机构地区：[1]中国社会科学院法学研究所

出　　处：《法学研究》2012年第3期24-42,共19页Chinese Journal of Law

摘　　要：现时代需要一种融合中西人文主义之精髓、兼济人的认知理性与道德理性的新人文主义。从人文主义的视角看,道德人文维度与民主政治维度是构建中国法治需要着力加强的两个方面。在法治发展道路上,中国需要协调好法治的道德、功利、政治与行政四个层面,沿着自身的文化传统,打造政治和社会的理性与道德基础,开拓一种具有厚重人文底蕴的"道德的民主法治",实现仁义道德与自然权利、民主法治在现代的历史衔接。China and the world need a kind of new humanism which absorbs the essence of Chinese and West humanism and merges cognitive rationality and moral rationality together so that mod- ern politics and society can be founded on morality and rationality at the same time. It is desired and possible for China to move towards the humanistic way to moral and democratic rule of law and realize the moral and political ideal combining ＂inner saintliness＂ with ＂external kingliness＂ again. There are three historical and theoretical types of the rule of law, that is, the rule of law as legalism, Confucian rule of law and the rule of law as constitutionalism. Generally and historical- ly, the rule of law as legalism is a kind of utilitarian and administrative rule of law, Confucian rule of law is a kind of moral and administrative rule of law, and the rule of law as constitutionalism is a kind of political and utilitarian rule of law. The kind of moral and democratic rule of law is ab- sent in the history until now. Relatively, although the West constitutionalism attached impor- tance to the rational humanism, liberal democracy and human rights, the moral dimension was ig- nored to some degree. Although Confucian rule of law valued the moral humanism, the dimension of democracy and natural rights wasn＇t developed sufficiently. On the whole, connecting democ- racy to morality, combining natural rights and morality, and harmonizing rational humanism with moral humanism are the hard but necessary task to complete in our present time. It is appropriate for modern China to make the two systems of ＂inner saintliness＂ and new ＂external kingliness＂ develop in parallel. On the one hand, the construction of ＂inner saintliness＂ should be based on human moral nature and moral rationality. On the other hand, the construc- tion of new ＂external kingliness＂ should be based on human physical nature and cognitive rational- ity. Meanwhile, the way to moral perception which is different from experiential perception shoul

关 键 词：法治 人文主义 宪政 认知理性 道德理性 

分 类 号：D920.0[政治法律—法学]