论法治国家

法与国家关系一元论既可能有利法治 ,也可能导致法治根本就无法建立。法与国家二元论下的国家优先论 ,可能使法成为国家的附庸而否定法本身。它在使法失去了自身的独立性和对国家的约束力的同时 ,也使法治失去了基本的立足点。在法与国家的产生上 ,二者在互动渐变中发展形成 ,没有先后之分 ;在法与国家的并存中 ,二者有着地位的差异。基于法与国家本身的特性 ,基于保障人民权利的价值期求 ,基于实现法治国家的理想目标 ,法律应当优先于国家。就法治国家来说 ,我们要建设的是实质意义上的法治国家 ,而非形式意义上的法治国家。我们不能将法治国家与法治相等同 ,更不能将二者对立起来 ,相反 ,我们应当把法治的内容纳入法治国家的含义之中。法治国家与人治国家、专制国家、警察国家等非法治国家相对立 ,与宪政国家相联系。西方法治发展已经经历了漫长的历史过程 ,中国关于法治国家口号的提出也有百年的历史 ,现在重提并郑重确认它为我国社会发展的目标 ,必然具有重大的意义。我国法治将经由法治国家进而向法治社会的纵深发展。

On What a Legal State Means

The monism concerning the relationship between law and state may either beneficial to the idea "ruling by law" or result in a nil effect on the establishment of governing by law. And the theoretical viewpoint under the dualism being involved in the relationship between state and law that "the state is prior to every thing" may lead to an exclusive result that the state law might become appendage to a state that negates the restraint of the very law, which, while making the law abandon its own independent power and its relevant restraint to the state, causes the idea of "governing by law" loose its primary foundation. Actually, both law and state are co-existent and both of them simultaneously develop in an interactive vicissitude state with neither priority nor lateness. Of course, there indeed exists some differentiation in their respective phase of development. Nevertheless, in view of their idiosyncrasy between law and state, in view of its expectant value of protecting the interest of the people and in view of substantializing the ideal goal of "ruling the state by law", in this sense, law is undoubtedly prior to state. As for a state ruled by law, what matters most is to establish a state ruled by law in its essence rather than merely in its form. We should not put the idea of "a state ruled by law" and that of "ruling by law" on the same equilibrium. Nor should we regard them as a counterbalance. But rather, what the idea of "ruling by law" refers to should be conceived in what the idea of state "ruled by law." The idea of state "ruled by law" is in association with a constitutional state but it is in opposition of such states not ruled by law as monocracy, autocratic state, as well as state ruled by police. The history of government by law in the western countries has been long and the proposition on establishment of state "ruled by law" has a history of more than one hundred years. And the same proposition brought out and reaffirmed in our realistic society will be genuinely significant of the goal in developing our present society. We will have a further development of "ruling by law" in our country transiting from a state "ruled by law" to a whole society being put under the control of law.