韩非以法治国思想研究

发布时间：2018-06-04 04:33

本文选题：法家 + 韩非　；参考：《山东大学》2012年硕士论文

【摘要】：韩非子出身韩国,然位于庶子之列,天生口吃,加之当时的韩王昏庸无能,韩国政局腐败及秦、齐、魏等强国不断蚕食韩国过土等因素,这使得韩非将其满腔的政治热情与爱国热真投诉笔端,对当时的国内外形势进行了深刻的反思和探讨,写出了很多寓意深刻被秦王赢政所青睐的著作,如《难言》、《说难》、《主道》、《解老》、《六反》、《显学》、《有度》、《邪饰》等等。作为先秦最后的法家代表人物,韩非也是先秦最后的大思想家。因此,在一定程度上,他的思想不仅受到管仲、商鞅、申不害等前期法家人物的影响,而且与儒、道、墨等诸子百家有着千丝万缕的联系。他继承与批判各家思想精华,主张“法”、“术”、“势”融为一体,构成“以法治国”思想体系的核心。整体而言,本文主要分为三大部分：第一部分,“以法治国”思想产生的背景。单纯的对“以法治国”思想进行孤立的看待,割舍它与相关时代背景的联系,是很难准确理解其思想的内涵的。这部分从韩非所处的社会政治背景和早期法家思想、道、儒等学派思想入手,重点阐释了韩非“法治”思想的学术渊源：早期法家人物管仲、商鞅等对韩非的思想启迪,以及韩非对道家、儒家思想的传承、批判及整合。 “法治”与儒家思想的渊源体现于荀子和韩非的师徒关系上,比如对“正定名分”的继承,从“人性论”、“法后王”、“尊君论”等观点中都能找到荀子的思想痕迹。韩非在《解老》、《主道》等书中重点阐释了“道”和“法”的关系,将自然之“道”引入到治国之“法”中来,老子的“无为”被韩非所继承和发扬。法家思想虽晚于道、儒产生,但在保持本派思想特色的同时,充分吸收了其他学派的精华,因此在百家争鸣中异军突起并成为战国时期的思想主流。对于秦之后的历代统治者而言,法家思想依然是不可或缺的治国良策。第二部分,韩非法律思想体系的构建与运行。这部分从就是“以法治国”的含义,原则,实际运行等方面进行论述：法应该是公开的成文法,法令通俗易懂并被广大民众所熟知,“法者,宪令著于官府,刑罚必于民心”(《韩非子·定法》)①；法的精神在于公正不阿,不偏不倚,该赏则赏,该罚则罚,以此追求人人平等、公正无私的理想社会；君主要放弃主观因素的好恶喜怒,因势利导,实行“无为而治”,即援道入法,将无为政治改造为具备实际有效性的治国方略,要求臣民遵守法度,国君以法治国；“好利恶害”的人性本质要求法的制定必须具备功利性和效益性,“公私之别”使得法的制定权必须集中到君主手中,保证驾驭群臣；法的制定要因时制宜,既要变更又要稳定,在“动”与“静”的结合中保持法的高度统一；贯彻重刑主义思想,“胜刑”和“少赏”,“以刑去刑”,以达到法的定分之争、惩善扬恶的目的。第三部分,“以法治国”思想的历史评价。任何思想都有它值得学习和发扬继承的闪光点,但受到时代的约束,毕竟也有不足之处。“以法治国”作为中国历史上传统的法治思想资源,在秦汉以后的中国法制史甚至东亚东南亚的封建史中都带来深刻的影响。受时代的局限,韩非法治思想有不完美之处,比如过度重视刑罚,忽视“德治”,强调君权主义从而导致皇帝暴政现象,等等。但是,“以法治国”更为积极的是它的“法不阿贵,绳不绕曲”所体现的法律面前人人平等思想,这是一笔宝贵而丰富的思想遗产,对于今天的社会主义法制和民主政治建设,也有一定的启发和良好的借鉴。
[Abstract]:Han Fei Zi was born in South Korea, but in the column of the concubine, natural stuttering, and the inability of the Han king at that time, the political corruption of the Republic of Korea and Qin, Qi, Wei and other powerful countries continued to encroach on the South Korea over the earth, which made Han Fei deeply rethink and discuss the domestic and foreign situation of his political enthusiasm and patriotism. He wrote a lot of books which were favored by the king of the emperor, such as "hard to say >", "difficulty", "master", "Xie Lao >", "six anti >", "obvious School >" and "evil ornaments". As the last legalist figure of the pre Qin Dynasty, Han Fei was also the last great thinker of the pre-Qin period. Therefore, his thought was not only affected by Guan Zhong, Shang Yang, Shen, Shen, etc. The influence of the early Legalists, and with the Confucianism, Taoism and the ink and so on. He inherited and criticized the essence of various thoughts, and advocated the integration of "law", "art" and "potential", and formed the core of the ideological system of "governing the country by law".
As a whole, this article is divided into three main parts.
The first part is the background of "governing the country by law". It is difficult to understand the connotation of the thought in isolation from the thought of "governing the country with the law" in isolation. It is difficult to understand the connotation of its thought. This part begins with the social and political background of Han Fei and the thought of early Legalists, Confucianism, Confucianism and other schools. The academic origin of Han Fei's thought of "rule of law" was explained: early legalist Guan Zhong, Shang Yang and Han Fei, as well as Han Fei's inheritance, criticism and integration of Taoism and Confucianism.
The origin of "rule of law" and Confucianism is reflected in the relationship between Xunzi and Han Fei, such as the inheritance of "positive and definite". From the views of "the theory of human nature", "the queen of law", "the Zun Jun theory" and so on, Han Fei can find the ideological marks of Xunzi. The relationship between "Tao" and "law" is explained by Han Fei in the book "Xie Lao >" and "the main road", which will be explained from the relationship between "Tao" and "law". The "Tao" was introduced into the "law" of the rule of law. The "Inaction" of Lao Tzu was inherited and carried forward by Han Fei. Although the thought of the Legalists was later than the Taoism and the Confucianism was produced, it has fully absorbed the essence of the other schools while maintaining the ideological features of the school. For all the rulers of the past dynasties, legalism is still an indispensable policy of governing the country.
The second part, the construction and operation of Han Fei's legal thought system, this part from the meaning of "rule of law", the principle, the actual operation and other aspects of the discussion: the law should be an open written law, the decrees are easy to understand and are well known by the masses, "law, the constitution is in the government, the penalty must be the heart of the people" ("Han Fei Zi law >"); The spirit of the law lies in the fairness and impartiality, the reward is the reward, the penalty penalty, the pursuit of the ideal society of equality and impartiality; the Lord gives up the subjective factors of the good or evil, and carries out the "rule of no action", that is, "no action", that is, to aid the law, and to transform the inaction into the practical and effective strategy of governing the country, and ask the subjects to comply with it. To keep the law and rule the country by law, the essence of human nature of "good evil and evil" must be made of utilitarian and benefit. "The difference between public and private" makes the law making right must be concentrated in the hands of the monarchy to ensure the control of the courtiers; the formulation of law should be made in the light of time making, not only to change but also to be stable, and to maintain the combination of "movement" and "quiet". The law is highly unified; it carries out the idea of severe punishment, punishes punishment and rewards less, and punishes punishment by sentence, so as to achieve the goal of determining the division of law and punish the purpose of good and evil.
The third part, the historical evaluation of the thought of "governing the country by law". Any thought has its merits of learning and carrying forward its inheritance. However, it has the limitations of the times. After all, the "rule of law" as a traditional thought resource of the rule of law in Chinese history, the history of Chinese legal system after the Qin and Han Dynasties, and even the feudal history of East Asia and Southeast Asia. Owing to the limitations of the times, Han Fei's thought of rule of law is imperfect, such as overpaying the penalty, ignoring the "rule of virtue", emphasizing the monarchy and leading to the tyranny of the emperor. Such thought is a valuable and rich ideological legacy. It also has certain inspiration and good reference for today's socialist legal system and democratic political construction.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D909.2;B226.5

【参考文献】