What should college students talk about when they practice the rule of virtue and the rule of law? It is best to combine with the Fourth Plenary Session of 18. It doesn't have to be a long speech.

This paper holds that "rule by law" and "rule by virtue" are two indispensable ways for a country's long-term stability, and their rational unity actually requires the establishment of a constitutional order. As the highest form of the rule of law, constitutionalism not only provides a moral source for the rule of law, but also provides a guarantee for the realization of the rule of virtue.

First, the rule of law and the rule of virtue are inseparable.

Since the reform and opening up, the whole country has generally recognized the necessity and importance of the rule of law. Although the current situation of the rule of law in China is not satisfactory for various reasons, the important role of the rule of law in developing market economy and maintaining social stability has become a social consciousness. Some scholars even think that market economy and "rule of law economy" are two completely equivalent categories. In fact, there is a sharp contrast between the understanding of the importance of the rule of law and the relatively backward state of the rule of law in China, and it is this contrast that makes the concepts of "ruling the country according to law" and "ruling the country according to law" become constitutional norms. In the practice of China's political, economic and social reform, the concept of rule of law is undoubtedly a historic progress, and its significance need not be repeated in this article. three

But while emphasizing the importance of the rule of law, it also produces a kind of "omnipotence of the rule of law", which leads to blind worship of the rule of law. In academic circles, the scope of the concept of rule of law tends to expand infinitely, because it has not been accurately defined. "Rule of law" has become an all-encompassing and perfect abstract concept, a goal beyond national traditions and national conditions, and a panacea for all diseases in China. Some scholars in the legal field have criticized this tendency. four

The author believes that although the concept of rule of law is important, it also has its inherent limitations. After all, the rule of law is neither omnipotent nor complete. There are two reasons why the rule of law cannot be separated from the rule of virtue. The rule of law not only depends on a nation's ideological recognition and choice of moral norms, but also cannot be realized once it leaves the rule of virtue.

1. The moral basis of the rule of law

First of all, the connotation of the concept of rule of law must be based on appropriate moral theory. The first question of the rule of law is: What "law" should be used to govern the country? The author believes that the concept of "rule of law" itself cannot fully answer this question. In a modern country ruled by law, "ruling the country according to law" is obviously an important goal. However, without other conditions, the rule of law is often empty and may even fail to achieve good social goals. Imagine that without a sound democratic procedure, a law cannot represent the general interests of society; It may become a tool for a few people to use and control society, and it will naturally be resisted and hindered in the process of implementation. This is not uncommon in ancient and modern China and foreign countries. One example is the "heavy punishment and heavy law" advocated by legalists during the centralized period of the Warring States and Qin Dynasties. It is obviously impossible to achieve the ideal state of society by forcibly implementing such a "rule of law". It can be seen that the premise of advocating the rule of law is a reasonable decision-making mechanism based on democracy; The "law" of "rule of law" should be a "good law" that conforms to public opinion, not an "evil law" that safeguards the interests of social minorities at the expense of public interests. However, "rule of law" is not synonymous with "democracy". In a narrow sense, it seems that the rule of "good law" is not necessary. At least, emphasizing the rule of law itself cannot provide a standard to distinguish between "good law" and "evil law". The latter is a moral choice, which goes beyond the scope of pure law. In this regard, the Basic Law of the Federal Republic of Germany can explain the problem very well: Germany's basic state system has four characteristics: democracy, society, rule of law and federalism, and "rule of law" is only one of them. This in itself shows that the rule of law is not a complete concept. Without the guidance of moral goals and the guarantee of democratic political procedures, the realization of the rule of law may not bring good social effects.

In fact, the law itself is normative. The law we care about is not only an objectively described fact, but also a value judgment with people as the main body. We not only care about what the law is in the past, present and future, but also care about what the law should be. According to the so-called "Hume's Law", normality and positivity are two logically irreducible characteristics. Why should the breaching party compensate the other party for its expected benefits? Or should the suspect be presumed innocent before being convicted by the court (in fact, we just thought so not long ago)? Or should the defendant's administrative organ bear the burden of proof for the legality of the specific administrative act? No matter how detailed the legal provisions are, they cannot answer these questions; These questions belong to completely different levels, so they need different answers: for example, "Only in this way can both parties to the contract achieve the best state of resource allocation", or "Although some bad people may be misled, more good people can be guaranteed not to be wronged", or "Although it will bring some costs to the administrative organs, it will help protect the legitimate rights and interests of citizens". We assume that each of the above statements is a "good thing" worth pursuing (such as "this society should achieve the best state of resource allocation")-or because they are considered as "good things" or other things worth pursuing provide them with reasons. This normative reasoning eventually forms a "hierarchical order", in which higher (or basic) norms provide reasons for other less important norms. 10 at the top of this order level is one or some highest norms-such as the inviolability of "human dignity" in the Basic Law of the Federal Republic of Germany, which determines but does not depend on all other norms. In this rational hierarchical order, the rule of law itself cannot decide what to choose as the highest legal norm. It is a basic moral choice that must be made before the rule of law is realized.

2. The realization of the rule of law

More importantly, the rule of law requires that the law not only be written on paper, but also be fully implemented in real life, and the realization of the rule of law also depends on the rule of virtue. In fact, this proposition can be strictly demonstrated by modern social science theory. There are only two ways to obey the law-voluntary or compulsory, and two resources can be used-rational or irrational (especially moral concepts). 1 1 According to the theory of rational choice, it is in everyone's rational interest to voluntarily abide by the law. The following is a brief argument: the realization of the rule of law cannot be purely through compulsory punishment and fear of it, and voluntary obedience to the law cannot be purely through narrow personal rational choice, so it must rely on social moral resources.

Of course, the rule of law means following rules, so it is necessary to examine the nature and significance of rules from the perspective of pragmatism. Almost without exception, the rules require a kind of cooperative behavior that society thinks necessary (such as not stealing neighbors' property), and for any important rules, participating in cooperation means that individuals who abide by the rules must give up at least their immediate interests; Otherwise, this rule is almost doomed to be meaningless-if one thing is beneficial to everyone (such as running, drinking water or breathing air without hurting others), why is it necessary to impose rules (such as prohibiting not drinking water or running)? Therefore, meaningful rules must mean that obeying the rules itself is costly to at least some people; Individuals must make some sacrifices (such as "sacrificing" the convenience of at least some people not spitting) in exchange for others to abide by the rules. Without coercive measures or other ways to affect personal interests, this has become a typical "prisoner's dilemma" problem: since others abide by the rules, their non-compliance with the rules will not lead to the destruction of the cooperative state (for example, only one person spitting everywhere is not enough to pollute the environment); And if others don't follow the rules, then obeying the rules by themselves can't stop the destruction of the cooperative state (only one person who doesn't spit everywhere is not enough to protect the environment). So the result of the "prisoner's dilemma" is that no one will join the cooperation, because obeying the rules will make him pay an unnecessary price. From the perspective of rational choice, it is impossible for human beings to automatically realize the necessary cooperation just based on the calculation of rational interests; Any important rules can only be implemented by other means, such as moral restraint or violent punishment.

If the rules cannot be automatically enforced by rational calculation, can they be enforced by the state with violent punishment? At this time, the state selectively punishes non-cooperative behavior, thus changing the income structure of the game, making this kind of behavior defined as "illegal" unprofitable compared with cooperative (law-abiding) behavior. However, it can be considered that it is not enough for the implementation of the law to rely solely on the fear of punishment. It also depends on people's respect and voluntary obedience to the law. If there is no good moral code, if people only obey the law for their own interests, then the state of "abiding by the law, strictly enforcing the law, and prosecuting those who violate the law" is impossible to achieve, unless it is in an extremely autocratic and centralized country envisaged by classical legalists, the state maintains a huge and unrestricted police force, while citizens have no right to protect themselves, including the basic right to privacy. Moreover, even in this country, supervision according to law is not only expensive, but also almost impossible to achieve, because in this society, law enforcers and supervisors are in danger of breaking the law everywhere, and even the best national supreme ruler himself has the will or rational interests to safeguard the rule of law, but he is unable to ban his huge bureaucratic subordinate institutions from breaking the law and discipline. 12 Therefore, "it is not enough to learn from others". This classic assertion of Mencius (13) is undoubtedly a powerful argument for Confucianism to attack the omnipotence of legalism.

We only have one choice: the realization of a country ruled by law requires citizens' respect and voluntary obedience to the law, and the latter cannot be separated from the support of a moral culture. The rule of law itself presupposes the effective operation of moral binding force, because the "law" that does not conform to moral rules cannot be effectively implemented-and therefore it is not accepted by most people (the so-called "law does not blame the public"); Without the rule of virtue, the rule of law will become a distant fantasy.

In fact, this is fully proved by the experience of a country ruled by law. The United States is generally regarded as a country ruled by law, and the central hub of the rule of law in the United States lies in the judicial guarantee of the courts. But what mechanism is there to ensure that judges decide cases according to law? What system can effectively ensure that supervisors are supervised by themselves? This is an issue that is constantly debated by the American ruling and opposition parties. Conclusion-If it exists-It seems that the perfect supervision mechanism can't be separated from the judge's own professional accomplishment and social morality in the end. Interestingly, in the United States, a society that advocates the rule of law and individual freedom, there are quite high requirements for the moral quality of judges and even politicians. Former President Bill Clinton was almost impeached because of his misconduct during his term of office, which is a remarkable example. 15 In the recent US v. Microsoft case, 16, the judge of first instance was partially disqualified on appeal because he was interviewed by the media during the trial, which violated the provisions of the Federal Code of Conduct for Judges. These examples all illustrate the important role of "rule by virtue" in a country ruled by law. Without the government's own "rule of virtue", it is hard to say whether a country like the United States can maintain the current rule of law.

Second, the rule of virtue is inseparable from the rule of law.

Confucius said, "Governing the country by virtue is like Beichen, living in its place and surrounded by stars." 17 Since ancient times, the rule of virtue has always been China's ideal of governing the country, and it is even considered to have surpassed the rule of law in the realm. 18 may be due to the imperfection of the rule of law in the history of China, and the continuation of Chinese civilization cannot be separated from the "rule of virtue" advocated by Confucianism. The above discussion shows that the establishment of a country ruled by law cannot be separated from the rule of virtue. There is an inseparable relationship between the rule of virtue and the rule of law. In a sense, "law is the morality of culture." 19 In fact, the concept of rule of law itself is a moral appeal. At the same time, one-sided emphasis on the rule of virtue will lead to pan-moralism in China tradition. If the moral goal is set too high to be realized, the so-called "rule of virtue" will become empty talk or even hypocrisy. Therefore, the rule of virtue also faces several fundamental problems similar to the rule of law. It can be said that the realization of the rule of virtue can not be separated from the rule of law.

1. The connotation of rule by virtue

First of all, the rule of virtue also has the question of what kind of "virtue" to govern the country, which is a question that "rule of virtue" itself cannot answer. An obvious problem is that modern society is a democratic society that emphasizes equality. Only when the rule of virtue brings equality in the sense of rule of law can it be accepted by modern democratic society. The traditional "rule by virtue" (especially the moral rules embodied in "ceremony") is based on patriarchal feudal society, so there is an unacceptable tendency of inequality in modern democratic society. This tendency is obvious even in Confucian classics. In the ethical world of Confucius and Mencius, there have always been social or moral differences such as monarch and minister, father and son, men and women, "gentleman" and "villain", "laborer" and "laborer". People with different social and moral status are considered to apply different education, customs and even laws. This tendency of inequality was attacked by other schools, including legalists, in all previous dynasties, and naturally it was severely criticized during the May 4th Movement. It is worth emphasizing that the rule of law requires "everyone is equal before the law", which provides an indispensable principle of equality in modern society that the traditional rule of virtue does not have. 2 1

Secondly, one-sided dependence on the rule of virtue will damage the rule of law and ultimately the rule of virtue itself. This is the fundamental defect of the traditional rule of virtue, and its primary reason lies in its dichotomy assumption of human behavior inequality. In the eyes of Confucianism, some people are "gentlemen" and others are "villains"; "A gentleman is figurative, and a villain is figurative." They assume that a righteous "gentleman" will rule the society, which will naturally reach the realm of peace in the world; It seems incredible to give those selfish "little people" the right to rule themselves. Confucianism ignores a basic social fact here: that is, human beings are essentially the same; In a sense, everyone is a "gentleman" and a "villain", but to varying degrees. The fact is that everyone cares about (actually should care about) his own interests, even a "gentleman" with high moral character is no exception. When personal interests conflict with public interests, it is possible to abuse the power he has. As james madison, an American constitutional thinker, pointed out in article 5 1 of the Federalist Collected Works: "If the people are all gods, then there is no need for the government to exist; If people can be ruled by God, then there is no need for external or internal government constraints. To form a government that manages people by people, the biggest difficulty is that you must first enable the government to control the ruled; Second, the government must be forced to control itself. " It is precisely because no one is an out-of-touch "god" and it is impossible to rule people with the help of a "god" who never makes mistakes, so human beings need the government and at the same time limit it. Depriving ordinary people of their right to protect themselves actually makes the power of officials lose external checks and balances, thus encouraging them to abuse their power in disguise, so that the realization of public interests depends entirely on the personal wishes of those in power. Of course, moral self-discipline has a certain binding effect on power. However, experience tells us that self-discipline alone cannot effectively control the abuse of power. Relying solely on the rule of virtue will inevitably make the rule of virtue an empty talk and eventually repeat the mistake of rule by man.

2. The realization of rule by virtue

On the other hand, even if the concept of rule by virtue can be generally accepted by the society, it may not be effectively implemented. As Mencius himself pointed out, "it is not enough to be good at politics." The traditional "rule by virtue" emphasizes the positive influence of moral power on people's thoughts, and urges people to consciously abide by social moral norms through persuasion and education. However, the experience of real life shows that it is impossible to govern the country entirely by moral education; When necessary, the society must impose legal sanctions on acts that seriously harm the interests of others. Over-reliance on moral preaching will inevitably lead to pan-moralism, which is familiar to China's cultural tradition, thus inhibiting economic and social development. Under the condition of modern market economy, pan-moralism is particularly infeasible, because the market economy emphasizes the right of individuals to pursue happiness freely within the scope permitted by law, and does not advocate imposing arbitrary moral constraints on individuals to curb their desire to pursue legitimate interests; Even if it is feasible, the implementation of this asceticism rule will bring negative consequences to society, because the implementation of each moral rule needs to spend certain social resources, thus generating unnecessary social costs. Therefore, if a heavy burden is imposed on the society, then the moral rules themselves are unreasonable and difficult to implement.

More importantly, the realization of rule of virtue ultimately depends on the rule of law. In fact, this point can also be more strictly demonstrated. "Governing the country by virtue" is not just theoretical talk. Just like the law, a moral rule can only win people's respect and obedience if it is effectively implemented in real life; Just as unenforceable laws are not strictly "laws", unenforceable moral rules cannot be regarded as part of "morality". History has proved that social moral rules are often maintained or even formulated by the government. Only when government officials abide by the rules will the rules be universally respected by the society. Of course, the rule of virtue requires all members of society to abide by morality, but the key is that government officials must first abide by basic moral norms; Otherwise, society will soon fall into the "prisoner's dilemma" where everyone is immoral. But since human nature is "mainly selfish" (in Hume's words), it is unrealistic to rely solely on self-discipline to realize the rule of virtue. When the basic moral rules are violated, it is not enough to rely solely on the condemnation of public opinion. Government officials in a strong position especially have rational interests, and use their power in exchange for other forms of social resources (such as "trading power and money") to suppress the exposure and criticism of others. Therefore, in order to maintain the rule of virtue, society needs some external mechanism to control government behavior, and the most effective mechanism is to let all members of society protect their legitimate interests from unreasonable violations by officials through legal channels.

Of course, checks and balances between officials are also very important-whether it is the "imperial history" in ancient China or the "separation of powers" in modern western countries, this truth is reflected. However, without the checks and balances of the whole society, the rule of virtue finally proved to be fragile; All kinds of unjust, false and misjudged cases in ancient and modern China just show that political power has not been fully supervised by society. In modern society, there are two main ways of social supervision: representative democracy and judicial procedures in which ordinary citizens can participate. Democratic politics ensures that candidates who are in the public interest enter the government through elections, and forces officials to correctly exercise public power, otherwise they will face the risk of failure in future elections; Judicial control ensures that officials act in strict accordance with the letter and spirit of the law, thus preventing them from infringing on citizens' legitimate rights. Therefore, the realization of rule by virtue must rely on heteronomy based on the rule of law. Only by relying on democracy and the rule of law, especially the administrative rule of law, can social morality be maintained, and it will not bring arbitrary and autocratic rule of man.

In short, in order to overcome the disadvantages of traditional rule of virtue, we must eliminate the behavioral hypothesis of dichotomy and replace it with moral norms that are equally applicable to all people in society. After all, there is inevitably a selfish side in human nature; As long as it does not harm the interests of others, people's pursuit of their own interests should be properly protected by law. In this sense, everyone is equal, enjoys the same rights and undertakes the same legal obligations as other people in society. Only when an equal set of "rules of the game" is formed and government actions are controlled by citizens through legal and political procedures can society enter the real "rule of virtue"; Otherwise, "rule by virtue" can only rely on the benevolent rule of the rulers. Once a set of basic rules of the game acceptable to every rational person is formed, the rule of law will enter constitutionalism through the rule of virtue.

Third, constitutionalism: the rational unity of "morality" and "law"

To sum up, the simple rule of law is not feasible, and the simple rule of virtue is not reliable. Without the call of the rule of virtue to human conscience, the rule of law is an unattainable and unsustainable fantasy; Without the rule of law and its external constraints, moral self-discipline is bound to be empty talk. Therefore, a reasonable social order must be a reasonable unity of rule of virtue and rule of law. Based on the following reasons, the author believes that this unity is nothing more than constitutionalism, and it is the unity of "morality" and "law".

First of all, if we adopt a broad enough understanding, then "rule of law" also means constitutionalism. As the name implies, constitutionalism is the highest form of the rule of law. This is because the constitution should be a part of "law", so "ruling the country according to law" necessarily means ruling the country according to the constitution. The so-called constitutionalism refers to the political system that is really governed by the constitution. In a "constitutional country", the constitution is the highest-level law governing the country, and it plays a practical role in people's real life just like the law. Constitution is a collection of basic rules of the game that can be universally recognized by human reason, mainly including the scope and distribution of state power, the relationship between the government and citizens and the basic rights of citizens, and these rules can be effectively implemented through ordinary or special courts. If there is a conflict between laws, then the basic principles of the Constitution must be applied to solve the conflict, thus forming a complete, coherent and executable legal system. Since the constitution is also a "law" and the highest "law", the legal system without the direct effect of the constitution is bound to be incomplete. Therefore, a complete rule of law must include constitutionalism.

Secondly, unlike ordinary laws, the constitution, as a "superior law", is not purely moral neutral, but must have a certain moral dimension. Since the constitution is the highest law of the country and the peak of the "pyramid" of national laws, it will inevitably involve the basic choice of moral values. These moral values constitute the normative basis of the national constitution and laws, and are usually explicitly recognized by the constitution. For example, the United States federal constitution of 1788 clearly declares in the preface that the basic goal of the constitution is to "establish justice, ensure domestic stability, provide common defense, promote universal welfare, and extend the gift of freedom to us and future generations." As a means to achieve these substantive goals, the Constitution provides a federal government structure with separation of powers, and clearly guarantees the basic rights of citizens such as freedom of speech, due process of law and equal protection (amendment 14) in the Bill of Rights and other constitutional amendments, which fully embodies the value orientation of the US Constitution centered on rights. Similarly, Article 1 of the Basic Law of the Federal Republic of Germany 1949 clearly stipulates that "human dignity is inviolable. All state powers have the responsibility to respect and protect it. ..... inviolable and inalienable human rights are not only the cornerstone of every community, but also the cornerstone of world peace and justice. " This shows that the Basic Law and even the whole German legal system are based on the values of human dignity and human rights. The rest of the Constitution, including specific rights clauses and the decentralized government structure, is a concrete extension of basic values. As the German Constitutional Court clearly acknowledged, the Basic Law contains the substantive values of rights and responsibilities, thus constituting an "objective value order". 29

Therefore, constitutionalism is the rational unity of rule of virtue and rule of law. As the highest form of the rule of law, it contains the basic moral norms generally recognized by the society, thus providing an indispensable value basis for the rule of law. As Professor Walter Murphy pointed out, "Constitutionalism is a normative political theory, [it] requires that the core value of any society must be human dignity." At the same time, it enables basic moral values to be implemented through the rule of law. In a sense, constitutionalism is to legalize morality, because through the implementation of the constitution, it makes basic values enter the substantive field of law and become an effective norm of political life through the courts. Without constitutionalism, the rule of law will lose its moral source, and the legal system will become a "pyramid" without a peak; Without constitutionalism, the rule of virtue will become an empty talk that cannot be implemented, and even become an umbrella for political power and social inequality. This paper demonstrates that the rule of law and the rule of virtue are interdependent and cannot be neglected. Only by realizing constitutionalism, rule of law and rule of virtue can we combine perfectly and become a rational unity.

The rule of law cannot be separated from the rule of virtue. The rule of law not only depends on a nation's ideological recognition and choice of moral norms, but also cannot be realized once it leaves the rule of virtue. The premise of advocating the rule of law is a reasonable decision-making mechanism based on democracy; The "law" of "rule of law" should be a "good law" that conforms to public opinion, not an "evil law" that safeguards the interests of social minorities at the expense of public interests, otherwise it may become a tool for minority people to use and control society.

And law is the lowest bottom line of morality.