【作者】 祝庭显；

【导师】 余金成；

【作者基本信息】 天津师范大学 ， 科学社会主义与国际共产主义运动， 2009， 博士

【摘要】 本文回答影响中国法治建设进程的三个基本问题：中国法治道路应当怎样选择?对过去六十年法治历程应当怎样看?我们选择和实践的法治道路是否经过论证?而上述问题的答案涉及到民本思想、民主精神、法治理想的辩证解读。源起于商周的民本思想是中国传统政治法律思想中的精华。其历史进步性根源于其蕴含的重民、利民、裕民、以民为本等元素，历史上曾造就了若干明君贤吏，出现了不少时段的清明盛世，客观上为中华民族创造辉煌灿烂的古代文明提供了价值准则和智力资源。但对民本思想的解读不应脱离特定时代，因其思想基础、法律地位、制度支撑的缺位或错位，更多是停留在开明知识分子的道德理想层面，思想威力发挥的实践空间有限。发端于古希腊的民主精神是西方政治法律文化的核心精神，其精义在于保障自由、平等和人权，其理性催生了西方现当代文明。与民本思想不同，民主精神产生之初就和法律、制度紧密结合，因而极具现实性。民主政治能够实现多数人的统治，却无法体现整体人的统治，少数人利益在民主机制中的缺位，显然与民主精神相悖。肇始于西方法治理想的基本精神在于权力控约和权利保障，如同民主精神一样，是西方文明的奇葩。法治价值实现的基础在于存在良法，良法来源于民主；历史证明，有法治无民主的状况不仅理论上可能，而且成为现实的存在。后者意味着恶法出现的可能。克服这种危险需要完善民主机制，发扬民本理想。民本思想、民主价值、法治理想三维互动才能实现善治。民本思想凸显的是官员对人民的关爱，民主思想张扬的是人民对官员的制约；没有民本精神支撑的民主制度很容易异化为多数人的暴政，没有民主制度保障的民本思想则容易演化为官员对人民的恩赐。没有民本精神、民主制度为内核的法治只具有法治外壳，不会得到民众的理解和认同。没有法治保障的民本精神、民主制度，容易滑向人治和专制的深渊。六十年来，中国的法治建设不是在复制西方理论和重走西方道路，而是以西方法治理论为借鉴，寻求法治在中国的生成方式，形成自身鲜明的民族特色，即呈现出民本与民主交织下的“特别”法治之路。更多还原

【Abstract】 This paper wants to answer three basic questions which impact the process of building China’ s rule of law: How to choose the road of China’ s rule of law, how to think about the course of the past sixty years, and whether the road of the rule of law we chose and practice after is proof? And the answer relates to comparative study of the People-oriented thought, the democratic spirit, the rule of law.The People-oriented thought, Originated in the Shang and Zhou dynasty, is the essence of traditional Chinese political and legal thought. Its historical progress rooted in its elements of thinking highly of people, benefiting people, making people rich, people-oriented , etc, historically has brought up a number of enlightened emperor and virtuous officials, created many periods of peace and prosperity, objectively provided standard of value and resources of intelligence for creating Chinese brilliant ancient civilization. But to the interpretation of this People-oriented thought should not be divorced from a specific era, because of the absence or dislocation of its ideological foundation, the legal status and the system’s support, mostly at the level of moral ideals of open-minded intellectuals, ideological power of the practice is limited.The democratic spirit, which originated in ancient Greece, is the core spirit of Western political and legal culture. Its essence is to protect the freedom, equality and human rights, and its rational is the birth of contemporary Western civilization. The democratic spirit, which is different from the People-oriented thought, is closely integrated with the law and the system when it arose from the beginning, and therefore very realistic. Democracy can achieve majority rule, but not reflect whole person’ s rule. It is obviously inconsistent with the spirit of democracy that the minority interests absent from the democratic institutions.The basic spirit, which originated from the west rule of law, is the control of power and the protection of rights. As the spirit of democracy, it is the wonderful work of Western civilization. The value of the realization of the rule of law is the existence of good laws which originated from democracy; but history has proved that the situation of the rule of law without democracy, is not only theoretically possible, but the existence of a reality. The latter means that the bad law may arise. To overcome this danger need to improve democratic institutions and promote the People-oriented thought.To realize good governance, the People-oriented thought, democratic values, the rule of law should achieve the ideal three-dimensional interaction. The People-oriented thought prominent that officials are concerned about people, while the democratic thought makes widely known that the people constrain officials. The democratic system without the support of the People-oriented thought is very easy to dissimilate for the tyranny of the majority of people, while the People-oriented thought without the guarantee of democratic system is easy to evolve for the official gift to the people. Without the People-oriented thought, the rule of law which takes democratic system as its core has only shell of the rule of law, but will not win the people’ s understanding and recognition. Without the guarantee of the rule of law, the People-oriented thought and the democratic system will face to great risk, and be easy to slide into the abyss of the rule of man and authoritarian.For sixty years, instead of copying Western theories and re-take the Western road but taking west theory of the rule of law as background , China’ s rule of law has been searching for its own growth pattern to form the distinctive national characteristics. In a word, it is showing the "special" road of the rule of law under the intertexture of the People-oriented thought and democracy.更多还原