道与中国法律传统

“道”是先秦道家提出的且在历史上运用十分频繁的一个哲学概念 ,讲求“天人合一” ,强调自律、内控 ,约束人欲的膨胀 ,以维护人与人、人与自然之间的和谐秩序 ,自由思想、权利意识无所由生。法律制度在“道”的指导下 ,形成“道法”传统 ,沿着三个路径变化、发展 :从政治属性上 ,法作为政治的附属 ,走上专制法统的路子 ;从传统法制的内容上 ,走上轻权利重义务的义务本位的路子 ;从法律体系的构织上 ,走上法网宽疏的路子。“道”成为中国古代法的精神。

"Dao" and Legal Tradition of China

As a philosophical conception, “Dao” was presented in the pre-Qin Dynasty, and has been quoted frequently since then along the Chinese history. “Dao” advocates so-called “integration of Nature and human being”, and puts emphasis on these values such as self-discipline, self-control, etc. The increase of human being's desire is to some extent subject to these values and creeds. Moreover, the harmonious relationship among people, the harmonious order between human being and Nature are both protected and maintained by them, which results in the scarcity of idea of freedom and in the short of consciousness of rights. Under the rule of “Dao”, the Chinese legal system has formed its own tradition of “Daofa”. It extends its own development in three ways: 1) politically, the law, as the accessory of political policy, extends its own way towards the dictatorship; 2) in its content, the tradition develops its own way towards focus on the duties, and towards disregard of the rights; 3) systematically, it extends the way towards the huge loophole of the whole legal system.“Dao”, therefore, became the spirit of the ancient Chinese law.