文章认为 ,法治的生成和发展是与国家和市民社会关系紧密相关的 ,而国家和市民社会关系在东西方却具有不同的演进路径。即在西方呈现的是国家与市民社会相复合 (古希腊 )———国家对市民社会的监护 (古罗马 )———国家吞并市民社会(西欧中世纪 )———市民社会与国家的二元分立和抗衡 (近代资本主义 )。这种发展路径造成了多元文化和权利抗衡国家权力的西欧“独特性”,并促动了近代法治的生成。而古中国及东方国家则一直处于国家吞并市民社会状态 ,形成了扼制权利和自由的“东方专制主义” ,法治便无以产生。这启示我们 ,中国要走向法治 ,就不应仅满足于法律制度的植入和法律体系的建构 ,也不应满足于民主政治、市场经济和理性文化这种“法治基础和条件”的一般性解说 ,而应着力建立国家和市民社会的良性互动关系 ,这才是问题的关键 The article argues that the formation and development of the rule of law is closely related to the relationship between the state and the civil society, while the relationship between the state and the civil society has a different path of evolution in East and West. That is, in the West, there is a combination of state and civil society (ancient Greece) --- the state’s custody of civil society (ancient Rome) --- the annexation of civil society by the state (medieval Western Europe) --- the duality of civil society and state Discrete and contested (modern capitalism). This path of development has resulted in the “uniqueness” of Western Europe where multiculturalism and rights counterbalance state power and has spurred the emergence of modern rule of law. However, the ancient China and the Eastern countries were always in the state of annexation of civil society by the state, forming the “Oriental despotism” that controlled power and freedom, and no rule of law emerged. This suggests that if China is to go to the rule of law, China should not only be satisfied with the implantation of the legal system and the construction of the legal system, nor should it be content with the generality of the “foundations and conditions of the rule of law” such as democracy, market economy and rational culture However, we should make every effort to establish a benign and interactive relationship between state and civil society, which is the crux of the issue