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“法治”观念在东西方都有着悠远的历史。进入近代以后,源自对商品经济所产生的利益的关切,西方社会重张“法治”的旗帜,并推动了“法治”的实现和制度化。“法治”的字面意思是法律的统治。从广义上说,法治意味着所有人都应当服从法律,接受法律的治理。但是在现代政治理论和法学理论中,对法治的理解往往侧重于其狭义的解释。在一定意义上可以说,现代法治的精髓在于政府应受法律的治理,遵从法律。法治与人治相对立而存在,法治理念也常常被表述为:“政府由法律而非由人来统治。”但是,如果认真推敲,这一命题显然是存在问题的。《孟子·离娄》有云:徒善不足以为政,徒法不足以自行。任何国家在推进法治化的进程中都不可能否定人的因素的存在,失去了维系法治理念延续的具体运作者,法治建设最终将沦为完全与实务相剥离的单纯的立法过程。从这个意义上来说,法治最终还是要依赖于人的治理。
The concept of “rule of law” has a long history in both east and west. Since its entry into the modern era, it has come from concerns about the benefits derived from the commodity economy. The western society has reasserted the banner of “rule by law” and promoted the realization and institutionalization of “the rule of law.” The “rule of law” literally means the rule of law. Broadly speaking, the rule of law means that everyone should obey the law and accept the rule of law. However, in modern political theory and legal theory, the understanding of the rule of law tends to focus on its narrow interpretation. In a certain sense, it can be said that the essence of modern rule of law is that the government should be governed by the law and comply with the law. The rule of law is opposed to the rule of man and the notion of the rule of law is often expressed as follows: “The government is governed by law, not by human beings.” However, there is a clear problem with this proposition if it is carefully considered. “Mencius from Lou” goes: not good enough to rule the government, not enough to practice their own law. It is impossible for any country to deny the existence of human factors in the process of promoting the rule of law and lose the specific operators who maintain the continuation of the concept of the rule of law. Ultimately, the construction of the rule of law will eventually be reduced to a mere legislative process that completely separates from practice. In this sense, the rule of law ultimately depends on human governance.