法治、法治國和依法治國

Rule of Law, Rechtsstaat and Ifazhiguo

中國大陸正在大力推動深化法治的改革，一個充滿懸念的問題始終是：人類在短短的法治歷史發展迄今，也才大概領略了一些法治的況味，中國有多大的機會發展出自己的理論和模式，走出自己的路？本文即試從義理、功能和轉型的觀點簡單的探討已知的法治類型，大體可以看到不同統治關係、社會複雜度下的法治，以及走向法治的發展策略，這些可說是擺在中國大陸面前可選擇的路徑。並於整理中共兩次中全會具體建構中國模式的依法治國，有哪些大的方向後，進一步指出此一模式不同於既有選擇的中國特色在哪裡，為什麼從各個角度看都要面對加倍的困難。最後再以結論指出此一新治理策略對中國大陸這樣的超穩定政治體而言，底下潛藏的不穩定因素有哪些。綜合各個觀點即知，以中國大陸改革開放三十幾年達到的現狀，已不可能複製任何國家的發展模式，中國能不能成功的走出一條法治的新路，或者終究還是在到達某個點以後，回到我們已知的老路，好像真的只有試了才知道。

Mainland China is launching a grand scale reform to engage law deeper in the state governance led by the Communist Party. With the short history of rule of law, we barely manage to grasp its basic ideas and principles and try to bring about values shared by all mankind. It is therefore hard to imagine, that Mainland China is capable to take a path, different from what we have, by trial and error, discovered. To lay out possible options in the first place, this paper makes typology of rule of law we used to know. There are three kinds from the perspective of ideology: rule of law, state rule through law and state rule by law, while the last one passed away with the collapse of the Soviet Union. And then three kinds from the perspective of social complexity: repressive law, autonomous law and responsive law. Furthermore there are three approaches to achieve rule of law from the perspective of development. While original discovering and forceful transplantation should be excluded nowadays, planning with a system of political tutelage, which had been implemented in China under the Kuomintang rule, might come into special consideration. Comparing the grand plan resolved in the 3rd and 4th Plenary Session of the 18th CPC to the available options, further assimilation to the basic features of the Western rule of law is quite obvious, especially on the part of judicial reform, until the persistence of the dictatorship of the CPC. Undoubtedly this new mode of rule by law would meet severe challenges, both in theory and in practice. The super stable political structure is what Mainland China could count on to experiment with this ambitious reform. But along with this reform some disstablizing elements might take place. Where would this reform end at, is hard to foresee. Quite certain is that for its specific context Mainland China could not just copy any country's successful experience. Whether it would finally reach a new frontier, or turn to the old way at some point, is open to question.