論德治與法治

德治思想是中國的政治傳統主要的精神是統治者以自身的道德感化力量來教化臣民，維持穩定的社會秩序與政治安定。德治思想是特定時、空背景下的產物。起源於周代。周朝初年，周公制禮作樂，以宗法制、封建制為國家體制的基石。而周天子成為天下共主及周王朝大家族的大家長，因為統治階級主要為一個家族，互有血緣親屬關係，故統治上偏重以道德教化，禮、樂的典章制度來治國。周代末年，禮、樂崩壞。法家思想興起，以法治國蔚為風尚，德治思想不行於世，至始皇統一天下。但秦朝過於殘暴，不恤民力，三代而亡。漢興，以黃老之術治國，與民休息。漢武帝時，獨尊儒術，罷斥百家，儒家思想成為主流意識，在儒家思想的內化下，中國社會成為倫理化的家族社會，政治上成為家國同構，天子成為天下的大家長。儒家的德治思想復活，延續兩千年。至現代民主化時代來臨，德治思想才逐漸沒落。現代民主政治強調民主法治，一切依法而治，人民服從法律，而政府依法行政。現代社會不再是倫理化的社會，而是法治社會，人民與人民，人民與政府的關係以法律為依據。在法治社會，德治觀念失去其功能。道德不再是政治運作的主流，而是維繫社會安定與進步的力量之一。政治運作需要道德，但不能完全依賴道德。民主法治才是民主政治的根本。

關鍵字

德治；封建制；宗法制；禮；法家；儒家；法治

並列摘要

The philosophy of moral is the mainstream of Chinese politics tradition, which is conducted by the sovereign in cultivating their people as well as maintaining social order and political stability. It was emerged from the circumstances of specific environment, Zhou Dyansty. At the beginning of Zhou Dynasty, the brother of emperor Zhou Wen Wang regulated the rules of etiquette and music. Sovereign of the state was fundamentally constituted by patriarch and feudalism. Emperor of Zhou Dynasty was recognized as the political leader of Chuan Chiu era and the patriarchy of Zhou's throne. The ruling party tended to manage the state with rules of virtue, etiquette and music cultivation as members of the ruling class are principally from the same clan, with blood connection. By the end of Zhou Dynasty, rules of moral, etiquette and music collapsed. Instead, Legalistic thinking rose as the mainstream for state management. Until all the states in Warring States Period were unified by emperor of Qin Shi Huang, the philosophy of moral was not practiced any more. However, Qin Dynasty only survived three generations and was extinguished, owing to its brutality to people. Down to the beginning of Han Dynasty, the ruling party managed the state with inaction, relieved people from social unrests. When it came to the Emperor Han Wu, Confucianism was exclusively selected from the others as the mainstream of philosophy under his sovereignty. Along with Confucianism cultivation, the society was then well managed as a family community with ethics hierarchy. Family and state are politically coexisting. The emperor was identified as the symbol of patriarch in the world. The rule of moral in Confucianism hence has become predominantly in Chinese history for two thousand years. The rule of moral went declining at the advent of modern democracy. In democratic politics, constitutionality is deemed the guidance. People's lives are in accordance with the rules and laws. Government administration is also in compliance with the constitution. The modern world is no longer that ethics of society, but constitutionality. Interactions between people and people or people and government, are subject to the rule of laws. In the society of constitutionality, the rule of moral has lost its function. Rule of moral has lost the position in politics operations, which now simply plays one of the roles in maintaining social stable and progress. It is necessary but not mandatory to include rule of moral into politics operations, constitutionality is the best guidance for modern democratic government.