先秦法家共同体的敌人:以法治国的规范理论

在揭示现代法治的起源和理念时,先秦法家的观点往往作为对立面而成为历史批判的靶子,我国法学界对"法治"和"法制"、"依法治国"和"以法治国"、"形式的、浅度的法治"和"实质的、深度的法治"等概念所做出的有意区分既加重了对先秦法家的打击,也中断了一种法治思想的文化连续性的思考方案。事实上,先秦法学关于以国为国、以法治国的基本主张开启了实证主义法学的先河,同时也为人的行为的分治理论和共治理论奠定了基础。

The Enemy of the Legalists in Pre-Qin Era: The Normative Theory on Ruling the Country through the Law

The views of the legalists in pre-Qin era has long been regarded as the opposite of the ideal of modern rule of law and thus become the targets of attack when Chinese scholars talk of the origin and ideal of rule of law. The distinction made by modern Chinese legal scholars between such concepts as "rule of law" and "rule by law", "ruling the country in accordance with the law" and "ruling the country through the law", as well as "formal and superficial rule of law" and "substantive and deep rule of law" neglects the cultural continuity of the thoughts of rule of law although it aggravates the attack on the legalists in pre-Qin Era. As a matter of fact, the basic position of the legalists in pre-Qin Era on "taking the country as a country" and "ruling the country through the law" not only gave the first voice of legal positivism, but also laid foundation for the theory of ruling with single norm and that of ruling with multi norms over human behavior.