论中国近代法律精英的法治理想

中国历史上几次大的法律转型,都离不开法律精英的发起和推动。传统中国社会,法律精英们的任务就是想尽一切办法论证专制权力存在的合理性,他们自身也因此变成专制权力的附着物,成为“人治”社会的牺牲品。近代法律精英的产生及其法治理想的形成是在清末传统社会向近代社会变迁之后,法律精英通过直接或间接途径,着手在中华本土绘制法治蓝图,追求法治理想:尝试制定良法,构建近代法律体系; 创制根本大法,追求宪政精神;收回治外法权,捍卫司法主权;争取司法独立,倡导司法公正;强调依法而治, 注重保障人权。由于受现实政治、社会及自身条件的制约,法律精英的法治理想注定只能停留在理论层面, 实际效应并不明显,政权更迭之际,自身也面临复杂的人生抉择。1949年以后的很长一段时间内,法律精英大多退到历史的后台,没有机会展示法治理想和抱负。直到数十年后,随着新一代法律精英的诞生,法律文化才重新焕发出勃勃生机。但是,法律精英要实现个体人格的真正独立,恪守法律至上,胸怀法治理想,为整个法治社会贡献才智,还有漫长的路要走。

Comment on the Legal Ideal of Elites of Law in Chinese Modern Times

We can't separate the initiation and promotion of elites of law from several large transformations of law in Chinese history. In traditional Chinese society, the elites' task was to try their best to demonstrate that the ex-istence of arbitrary power was reasonable.Therefore,they themselves became accessories of arbitrary power and victims of the "rule by man" society. After the traditional society of late Qing Dynasty turned into the modern society,the modern elites of law and their ideal began to appear. In direct of indirect ways,elites of law began to draw the native blueprint of the rule of law in china,and chased for ideal of law. They tried to establish good law and structure modern legal system;they created the extraterritoriality and safeguarded the judicial sovereignty; they fought for the judicial independence and sparkplug judicial justice;they emphasized the rule of law and paid attention to safeguard human rights. Because of the limitation of realistic politics,society and conditions of themselves, their ideal of law was restricted to the theoretic levels and the practical effects were not obvious. At the time of changing the regime, they themselves faced the complicated choices of lives too. During a long period of time after 1949, most of elites of law who had no chance of showing their ideal of law and ambitions went to the back of the historical stage. Decades of years later,as the birth of the new generation of elites of law,the culture of law began to be dynamic again. However, if elites of law want to realize the real independence of their personalities, scrupulously abide by putting the law in the first place,always have ideal of law in mind,avoid being reduced to vassals of parties and powers and contribute their intelligence to the society of law, they still have a long way to go.