民本与民主交织下的新中国法治之路

发布时间：2018-12-17 03:02

【摘要】： 本文回答影响中国法治建设进程的三个基本问题：中国法治道路应当怎样选择?对过去六十年法治历程应当怎样看?我们选择和实践的法治道路是否经过论证?而上述问题的答案涉及到民本思想、民主精神、法治理想的辩证解读。源起于商周的民本思想是中国传统政治法律思想中的精华。其历史进步性根源于其蕴含的重民、利民、裕民、以民为本等元素，历史上曾造就了若干明君贤吏，出现了不少时段的清明盛世，客观上为中华民族创造辉煌灿烂的古代文明提供了价值准则和智力资源。但对民本思想的解读不应脱离特定时代，因其思想基础、法律地位、制度支撑的缺位或错位，更多是停留在开明知识分子的道德理想层面，思想威力发挥的实践空间有限。发端于古希腊的民主精神是西方政治法律文化的核心精神，其精义在于保障自由、平等和人权，其理性催生了西方现当代文明。与民本思想不同，民主精神产生之初就和法律、制度紧密结合，因而极具现实性。民主政治能够实现多数人的统治，却无法体现整体人的统治，少数人利益在民主机制中的缺位，显然与民主精神相悖。肇始于西方法治理想的基本精神在于权力控约和权利保障，如同民主精神一样，是西方文明的奇葩。法治价值实现的基础在于存在良法，良法来源于民主；历史证明，有法治无民主的状况不仅理论上可能，而且成为现实的存在。后者意味着恶法出现的可能。克服这种危险需要完善民主机制，发扬民本理想。民本思想、民主价值、法治理想三维互动才能实现善治。民本思想凸显的是官员对人民的关爱，民主思想张扬的是人民对官员的制约；没有民本精神支撑的民主制度很容易异化为多数人的暴政，没有民主制度保障的民本思想则容易演化为官员对人民的恩赐。没有民本精神、民主制度为内核的法治只具有法治外壳，，不会得到民众的理解和认同。没有法治保障的民本精神、民主制度，容易滑向人治和专制的深渊。六十年来，中国的法治建设不是在复制西方理论和重走西方道路，而是以西方法治理论为借鉴，寻求法治在中国的生成方式，形成自身鲜明的民族特色，即呈现出民本与民主交织下的“特别”法治之路。
[Abstract]:This paper answers three basic questions that affect the process of China's rule of law construction: how to choose the road of China's rule of law? What should we think of the course of the rule of law in the past 60 years? Has the road of rule of law chosen and practiced been demonstrated? The answers to the above questions relate to the dialectical interpretation of people-oriented thought, democratic spirit and the ideal of rule of law. The people-oriented thought originated from Shang and Zhou dynasties is the essence of Chinese traditional political and legal thought. Its historical progress is rooted in the elements of emphasizing the people, benefiting the people and taking the people as the foundation. In history, it has brought up a number of wise and virtuous officials of the Ming Dynasty and appeared in the prosperous period of the Qing Ming Dynasty. Objectively, it provides the value criterion and intellectual resources for the Chinese nation to create brilliant ancient civilization. However, the interpretation of the people-oriented thought should not be divorced from a specific era, because of the absence or dislocation of its ideological basis, legal status and institutional support, it is more confined to the moral ideal of the enlightened intellectuals, and the practical space for exerting the power of thought is limited. The democratic spirit, which originated in ancient Greece, is the core spirit of western political and legal culture. Its essence is to guarantee freedom, equality and human rights, and its rationality has given birth to modern and contemporary Western civilization. Different from the people-oriented thought, the democratic spirit was closely combined with law and system at the beginning of its emergence, so it is very realistic. Democracy can realize the rule of the majority, but it can not reflect the rule of the whole. The absence of minority interests in the democratic mechanism is obviously contrary to the spirit of democracy. The basic spirit that originated from the western ideal of rule of law lies in the control of power and the guarantee of rights. Like the spirit of democracy, it is a wonderful flower of western civilization. The foundation of realizing the value of rule of law lies in the existence of good law, which originates from democracy, and history proves that the situation of rule of law without democracy is not only theoretically possible, but also a reality. The latter means the possibility of draconian law. To overcome this danger, we need to perfect the democratic mechanism and carry forward the people-oriented ideal. People-oriented thought, democratic value, rule of law ideal three-dimensional interaction can achieve good governance. The people-oriented thought highlights the concern of the officials to the people, while the democratic thought makes public the restriction of the people on the officials. The democratic system without the support of the people-oriented spirit is easily alienated into the tyranny of the majority, and the people-oriented thought without the protection of the democratic system can easily evolve into the gift of the official to the people. Without the people-oriented spirit, the rule of law with democratic system as the core has only the outer shell of the rule of law and will not be understood and recognized by the public. Without the rule of law, the people-oriented spirit, democratic system, prone to slide to the rule of man and autocratic abyss. Over the past 60 years, China's construction of the rule of law has not been replicating western theories and re-following the western road. Instead, it has taken the western theory of rule of law as a reference to seek for a way of forming the rule of law in China and to form its own distinctive national characteristics. That is, the people-oriented and democratic intertwined under the "special" road of the rule of law.
【学位授予单位】：天津师范大学
【学位级别】：博士
【学位授予年份】：2009
【分类号】：D920.0

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