貌离而神合:中国传统"礼治"与西方近代"法治"在法学价值上的契合

“礼治”是自西汉武帝之后中国历代封建统治者的基本治国方式,其主要特征是强调“德主刑辅”、“明德慎罚”和“礼法并用”。在一定程度上,“礼治”表现出尊重人的主体性及人的生命的人文主义特征和某种近代刑法原则的意味。从某种意义上说,古代开明君主时期的“礼治”,实际上就是中国传统文化背景下的“法治”。“法治”在中国历史上不仅起到了缓和社会矛盾、减轻民众痛苦、促进社会和谐进步的积极作用,而且因自身治国理政和刑制的独特优势在人类法制史上占有重要的地位。

Seemingly in Harmony but Actually at Variance: Correspondence between Traditional "Rule of Li"and the Western "Governing by Law"

"Rule of Li" had been the basic form to govern the country by the Feudalists from Emperor Wu of West Han Dynasty,and its main character is its focus on "Rule the country by more morality with the assistance of penalty","advocating morality and caution in penalty",and "combination between Li and law".To some extent,"Rule of Li" showed the characteristic of humanism of respecting human being and life.From one point,we can say that "Rule of Li" by good ancient emperors is actually "governing by law" under traditional Chinese culture."Governing by law" had not only eased social conflict,people's pain but speeded social development harmoniously in history.It played an important role in human law history because of its advantages in governing the country and penalty system.