荀況與韓非法律思想之比較
發(fā)布時間：2018-07-17 08:38
【摘要】：荀況作為戰(zhàn)國時期儒家的代表人物,其對孔、孟的儒家思想當(dāng)然的進行了繼承與批判,我們可以稱其為先秦儒家的集大成者,他在繼承孔、孟“禮治”思想的基礎(chǔ)上,同時借鑒法家的“法治”思想,創(chuàng)設(shè)性的提出了“隆禮重法”的禮法結(jié)合論,成為后世君主治理國家的基本方略。同時荀況對孔、孟的“性善論”進行了批判,并首次提出了“性惡論”,這在中國法律思想史上是很重要的一筆,也是荀況的法律思想的哲學(xué)基礎(chǔ)和立足點,其以后所有的法律思想都是基于這一基本的哲學(xué)基礎(chǔ)提出和展開的,同時荀況還首次提出了“有法者以法行,無法者以類舉”的將法律與判例相結(jié)合的“混合法”概念。 韓非作為荀況的高足,在治國理政方面決斷的選擇了更適合當(dāng)時時代背景的法家思想,在韓非看來,要想在亂世中稱霸,單純依靠“禮治”和“德治”是不可能的,所以他果斷選擇放棄“禮治”,實行專任統(tǒng)治,在他看來唯有“法治”和“重罰”才能實現(xiàn)君主專制。雖然荀況和韓非都極力主張維護君主專制,但是兩者所主張的方法和策略有很大的不同,可以說是殊途同歸。在筆者看來,韓非并沒有糾纏于“性惡論”這個問題,他是站在一定高度上來看待這個問題,韓非正是基于人“好利惡害”本性才提出來自己的法律主張。他并沒有像荀況一樣認(rèn)為人們可以通過教化改變其惡,即所謂的“化性起偽”,在他看來,人性“趨利惡害”是必然的,是不可能改變的,因此他主張利用人的這種本性來治理國家是最有效的辦法。 本文通過對荀況和韓非法律思想的比較研究,在對比中找出兩人的法律觀點的不同,并深究產(chǎn)生這種不同的原因和背景,從而汲取兩人法律思想中的精華,去其糟粕,為目前我國的法治化建設(shè)尋找更多的民族傳統(tǒng)和依據(jù)。 從整體上看,本文共分為四個部分： 第一部分是敘述和介紹荀況和韓非的生平與所處的時代背景,這也是兩人所提出的治國方略存在很大差異的最基本的因素,通過陳述兩人所處的時代背景,為后文的敘述和闡釋提供鋪墊。 文章的第二部分主要是介紹了荀況和韓非的一些主要的法律思想,如荀況的“隆禮重法”思想、“人治”思想以及“德禮政刑相互為用”的法律思想,韓非的“法治”思想、“重刑論”思想,“法、術(shù)、勢”相結(jié)合的思想,通過闡述兩人的思想概況,為后文對兩人的法律思想進行比較奠定基礎(chǔ)。 文章的第三部分是本文的主體部分,本部分這要是介紹和對比兩人的法律觀點,在對比中尋找異同,通過對兩人觀點的立足點的對比,法治思想側(cè)重點的對比以及兩人“法治”觀點的對比,深刻剖析這種差異存在的原因,為我國當(dāng)前的法治建設(shè)所借鑒。 文章的第四部分主要是闡述兩人思想對我國現(xiàn)代化建設(shè)的借鑒意義,這是出發(fā)點也是最終的目的,通過對比兩人的法律思想,在對比中找出兩人法律思想中適合我國當(dāng)前法治建設(shè)的法律思想和制度建設(shè),成為我國當(dāng)前法治建設(shè)的民族傳統(tǒng)和基石。 本文運用的研究方法如下： 第一,哲學(xué)方法。本文客觀的評價和分析荀況和韓非法律思想的優(yōu)缺點,從兩方面進行分析和研究,充分運用了馬克思主義的辯證唯物主義方法論,一分為二的看問題。 第二,本文充分運用對比的方法,在對比中尋找兩人法律觀點的異同,在異同中尋找適合中國法律發(fā)展的方向和路線。
[Abstract]:As the representative figure of the Confucianists during the Warring States period, Xun Kuang inherits and criticizes Confucius' Confucianism of Confucius and Mencius. We can call it the master of Confucianism in the pre Qin period. On the basis of his inherited Confucius and Mencius "rule of Rites", at the same time, he drew on the Legalist Thought of "rule of law" and creatively put forward the etiquette and law of "long rite and heavy law". At the same time, Hsun Kuang criticized Kong and Meng's "the theory of nature good", and put forward the "theory of sexual evil" for the first time. This is a very important point in the history of Chinese legal thought. It is also the philosophical basis and standing point of Xun Kuang's legal thought, and all the later legal thoughts are based on this one. The basic philosophical basis is put forward and unfolded. At the same time, Xun Kuang also put forward the concept of "mixed law" which combines law and precedent with the law and law.
As a high foot of Xun Kuang, Han Fei chose the legal thought that was more suitable for the time background of the time of ruling the country. In Han Fei's view, it was impossible to rely on the "rule of Rites" and "rule of virtue" by simply relying on the "rule of Rites" and "rule of virtue", so he chose to give up the "rule of Rites" and carry out the exclusive rule. In his opinion, he only looked as "rule of law" and "rule of law". "Heavy punishment" can achieve monarchical monarchy. Although Xun Kuang and Han Fei both strongly advocate the maintenance of monarchy, the methods and strategies are very different and can be said to be the same. In my opinion, Han Fei is not entangled in the question of "the theory of sexual evil". He is standing at a certain height to view the problem, Han Fei It is on the basis of human "good and evil" nature to bring up his own legal claim. He does not think that people can change their evil by teaching, that is, the so-called "pseudo - puppet". In his view, human nature "evils evil" is inevitable and can not be changed, so he advocates the use of human nature to govern the country. Home is the most effective way.
Through a comparative study of Xun Kuang and Han Fei's legal thoughts, this paper finds out the differences in the legal views of the two people, and explores the reasons and backgrounds of this different kind of reasons so as to draw the essence of the legal thoughts of the two people and go to the dross to find more national traditions and basis for the construction of the rule of law in our country.
As a whole, this article is divided into four parts.
The first part is the narration and introduction of Xun Kuang and Han Fei's life and the background of the times. This is the most basic factor that the two people put forward a great difference in the strategy of governing the country. By presenting the background of the times of the two people, it provides a paving for the narration and interpretation of the later text.
The second part of the article mainly introduces the main legal thoughts of Xun Kuang and Han Fei, such as the thought of "long rite and heavy law", the thought of "the rule of man" and the legal thought of "the mutual use of the political and punishment of virtue", the thought of "the rule of law" by Han Fei, the thought of "the theory of heavy punishment", the "law, the art, the potential", and the elaboration of the two people. The general situation of thought lays a foundation for the comparison of the two person's legal thoughts.
The third part of the article is the main part of this article. This part is to introduce and compare the legal views of the two people, look for similarities and differences in the contrast, compare the standpoints of the views of the two people, contrast the emphasis of the rule of law, and compare the views of the "rule of law" between the two people, and deeply analyze the reasons for the existence of this difference, for the present of our country The construction of the rule of law can be used for reference.
The fourth part of the article is mainly to explain the significance of the thought of the two people to the modernization of our country, which is the starting point and the final purpose. By comparing the legal thoughts of the two people, we can find out the legal thought and the construction of the legal ideology of the legal construction of the two people in our country, and become the nation of the construction of the rule of law in our country. Tradition and cornerstone.
The research methods used in this paper are as follows:
The first, the philosophical method. This article objectively evaluates and analyzes the advantages and disadvantages of Xun state and Han Fei's legal thought, and analyzes and studies from two aspects. It makes full use of the dialectical materialist methodology of Marx doctrine and divides it into two parts.
Second, this article makes full use of the contrast method to find similarities and differences between the two legal viewpoints in comparison, and seeks for the direction and route suitable for the development of Chinese law in similarities and differences.
【學(xué)位授予單位】：山東大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2012
【分類號】：D909.2;B222.6;B226.5
本文編號：2129834
[Abstract]:As the representative figure of the Confucianists during the Warring States period, Xun Kuang inherits and criticizes Confucius' Confucianism of Confucius and Mencius. We can call it the master of Confucianism in the pre Qin period. On the basis of his inherited Confucius and Mencius "rule of Rites", at the same time, he drew on the Legalist Thought of "rule of law" and creatively put forward the etiquette and law of "long rite and heavy law". At the same time, Hsun Kuang criticized Kong and Meng's "the theory of nature good", and put forward the "theory of sexual evil" for the first time. This is a very important point in the history of Chinese legal thought. It is also the philosophical basis and standing point of Xun Kuang's legal thought, and all the later legal thoughts are based on this one. The basic philosophical basis is put forward and unfolded. At the same time, Xun Kuang also put forward the concept of "mixed law" which combines law and precedent with the law and law.
As a high foot of Xun Kuang, Han Fei chose the legal thought that was more suitable for the time background of the time of ruling the country. In Han Fei's view, it was impossible to rely on the "rule of Rites" and "rule of virtue" by simply relying on the "rule of Rites" and "rule of virtue", so he chose to give up the "rule of Rites" and carry out the exclusive rule. In his opinion, he only looked as "rule of law" and "rule of law". "Heavy punishment" can achieve monarchical monarchy. Although Xun Kuang and Han Fei both strongly advocate the maintenance of monarchy, the methods and strategies are very different and can be said to be the same. In my opinion, Han Fei is not entangled in the question of "the theory of sexual evil". He is standing at a certain height to view the problem, Han Fei It is on the basis of human "good and evil" nature to bring up his own legal claim. He does not think that people can change their evil by teaching, that is, the so-called "pseudo - puppet". In his view, human nature "evils evil" is inevitable and can not be changed, so he advocates the use of human nature to govern the country. Home is the most effective way.
Through a comparative study of Xun Kuang and Han Fei's legal thoughts, this paper finds out the differences in the legal views of the two people, and explores the reasons and backgrounds of this different kind of reasons so as to draw the essence of the legal thoughts of the two people and go to the dross to find more national traditions and basis for the construction of the rule of law in our country.
As a whole, this article is divided into four parts.
The first part is the narration and introduction of Xun Kuang and Han Fei's life and the background of the times. This is the most basic factor that the two people put forward a great difference in the strategy of governing the country. By presenting the background of the times of the two people, it provides a paving for the narration and interpretation of the later text.
The second part of the article mainly introduces the main legal thoughts of Xun Kuang and Han Fei, such as the thought of "long rite and heavy law", the thought of "the rule of man" and the legal thought of "the mutual use of the political and punishment of virtue", the thought of "the rule of law" by Han Fei, the thought of "the theory of heavy punishment", the "law, the art, the potential", and the elaboration of the two people. The general situation of thought lays a foundation for the comparison of the two person's legal thoughts.
The third part of the article is the main part of this article. This part is to introduce and compare the legal views of the two people, look for similarities and differences in the contrast, compare the standpoints of the views of the two people, contrast the emphasis of the rule of law, and compare the views of the "rule of law" between the two people, and deeply analyze the reasons for the existence of this difference, for the present of our country The construction of the rule of law can be used for reference.
The fourth part of the article is mainly to explain the significance of the thought of the two people to the modernization of our country, which is the starting point and the final purpose. By comparing the legal thoughts of the two people, we can find out the legal thought and the construction of the legal ideology of the legal construction of the two people in our country, and become the nation of the construction of the rule of law in our country. Tradition and cornerstone.
The research methods used in this paper are as follows:
The first, the philosophical method. This article objectively evaluates and analyzes the advantages and disadvantages of Xun state and Han Fei's legal thought, and analyzes and studies from two aspects. It makes full use of the dialectical materialist methodology of Marx doctrine and divides it into two parts.
Second, this article makes full use of the contrast method to find similarities and differences between the two legal viewpoints in comparison, and seeks for the direction and route suitable for the development of Chinese law in similarities and differences.
【學(xué)位授予單位】：山東大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2012
【分類號】：D909.2;B222.6;B226.5
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