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在德治与法治的关系上,孔子提供了一种“德法互济”的思想。以法刑事件作为一个新的研究视角,或许有助于我们深刻理解此种思想的意涵。在孔子那里,“杀”与“礼”的矛盾仅仅是一种表象,基于“礼”所指向的政治秩序构建这一目标,二者获得了内在的统一性。孔子不但注意到了任刑对于德教的反向推助作用,同时亦以德教之于任刑的先在性作为必要条件。孔子对听讼者的德行提出了特殊的要求,并通过自身的司法实践证说了其社会价值。通过上述三个维度,孔子试图在社会正义与民众幸福之间取得某种平衡,以此构建一幅道德生活的理想图景。此种“德法互济”思想既没有偏离“德主刑辅”的基调,亦没有视法治为一种绝对的消极手段。在强调“坚持依法治国和以德治国相结合”的现代社会,孔子的此种思考或许能够在某种程度上贡献新的治国智慧。
On the relationship between the rule of virtue and the rule of law, Confucius provided a “morality, mutualism and reciprocity” thinking. Taking the criminal law as a new research perspective may help us understand the meaning of this kind of thinking deeply. In Confucius, the contradiction between “killing” and “courtesy” is merely an appearance, and the goal is built on the basis of the political order to which “courtesy” points, both of which have acquired internal unity. Not only did Confucius noticed the role of the penalty of imprisonment in the reverse promotion of virtue education, at the same time, the precondition of virtue education in the term of office of de jure was taken as a necessary condition. Confucius put forward special requirements to the virtues of the lawsuit and stated its social value through its judicial practice. Through the above three dimensions, Confucius tries to strike a balance between social justice and popular well-being to construct an ideal picture of moral life. This kind of thinking of “mutual understanding of Germany and France” has neither deviated from the keynote of “virtue and auxiliary punishment,” nor has it regarded the rule of law as an absolutely negative measure. In a modern society that emphasizes “insisting on governing the country according to law and governing the country by virtue ”, such thinking of Confucius may be able to contribute to a certain degree the new wisdom of governing the country.