书评作品：《论法的精神》 孟德斯鸠
作者：浙江大学公共管理学院/中国农村发展研究院 郑淋议
《论法的精神》：法者，治国之重器！
人性有弱点，财产要保护，人本需保障，是故，家，不可无规矩；国，不可无严法。
古代中国，自战国起，法律渐兴，盖以荀子性本恶为源，弟子韩非、李斯直接向法，理论实践，皆为空前，学者韩非“法术势”集而大成，政界李斯辅始皇以法制，秦律一出，天下峻法，后世多有借鉴。
清末以降，西学东渐，由器入道，制度救国蔚然成风。《中华民国宪法》融汇西方宪法要旨，提取中华文化精义，应运而生。其法之内容，三民主义、五权分立，其法之精神，民主平等，博爱包容，是中国法律史之大进步。《中华人民共和国宪法》不堪落后，结合国情实际，吸收前人创制，博纳西法精华，多有原创，后成中国特色。其法之内容，根本基本，三大制度，其法之精神，人人平等，条件自由，又开中国法律史之新境界。
古代西方，言法必罗马，习惯成文，公民万民，是为西法之滥觞。近代以来，英法德美诸国融宗教伦理之精神，创生近世宪法，君主立宪，民主共和，三权分立，博爱平等，彼此有制衡，于生活细处有信仰。
中西合取，始知，良法所在，非遏制人性而实为引导人性，非死板教条而实为活力信仰，由此而内化于心，外化于行。
Law a mighty tool of governing a country！
Human nature has flaws, properties need to be protected, and people’s life shall be safeguarded. Hence just as a family cannot exist without rules, a country cannot sustain without laws.
In ancient China, law had gradually arisen since the Warring States era and presumably originated from the “Inherent Vice” theory of Xuncius, which mostly served as a starting point. The disciples of Xuncius such as Han Feizi and Li Si, who were indeed prominent figures of Legalism despite looking up to the Confucianist Xuncius as mentor, moved straightly to Legalism and left unprecedented feats in Legalist theory and practice (Han Feizi was a scholar and focused on theoretic studies while Li Si was a politician and mostly engaged in practical work). The scholar Han Feizi’s effort culminated in combination of law, tactic, and authority. The politician Li Si aided and advised the First Emperor of Qin with legal system and devised Qin Law which awed the whole country to obedience and provided a reference for later generations.
Since the late Qing Dynasty, the Western learning was introduced into China and the Western technologies were first to be learned (advocated by the Westernization Movement) as practical means under the Chinese traditional system. Later people like Kang Youwei, Sun Yat-sen proceeded to advocate systemic reform as a means of strengthening the country and salvation through system change became popular. Thus the Constitution of the ROC, which draws in the main ideas of the Western Constitutions and contains essences of the Chinese culture, was born whose content consists of the Three People’s Principles (nationalism, democracy, the people’s livelihood) and Separation of the Five Powers (administration, legislation, judiciary, supervision, examination). The spirit of the law consists in democracy and equality, fraternity and tolerance and is a great progress in the legal history of China. The Constitution of PRC also stands out. By basing itself on the national realities, absorbing intellectual work of preceding generations and including the cream of Western laws, it is rich in innovations and possesses distinct Chinese characteristics. Its main content lies in one fundamental and two basics (the fundamental is the system of People’s National Congress, the basics are the system of regional autonomous s for ethnic minorities and the system of multi-party cooperation and political consultation led by CCP). The spirit of the law is that all men are equal and enjoy free conditions which opens up a new epoch in the legal history of China.
The ancient Western world worships the Roman Law, the common law and the statute law, the civil law and the law of nations, which becomes the origin of Western laws. Since the contemporary age, countries like Britain, France, Germany, and US assimilate religious and ethical ideas in their creating of contemporary Constitutions which are characterized by constitutional monarchy, democracy and republicanism, division of powers, fraternity and equality. Checks and balances exist to each other and beliefs abound in people’s life (US in particular integrates articles of law with the national life and makes law itself a belief of value).
Only by adopting essences of both the Chinese and the Western laws, merits of a sound law can be made evident, which purports not to contain the human nature but to guide it, not to act as a stiff dogma but as a dynamic belief through which to seek internalization in heart and externalization in behavior.
