Rule by virtue is a tradition.

From "Utopia ruled by virtue" to rule by virtue under the rule of law

The rule of law is the basic feature of modern politics, while the rule of virtue is the essence of China's traditional politics. In recent years, the government of China has successively put forward the general plan of "ruling the country by law" and "ruling the country by virtue". Obviously, the China government is trying to combine tradition and modernity under the policy of "critical inheritance and comprehensive innovation". However, in theory, it is necessary to clarify the following two questions: what position does the rule of law and the rule of virtue occupy between them?

Xu's view of rule by virtue

In Xu's view, the traditional Confucian thought of ruling by virtue is a social and political governance model and basic principle based on the theory of good nature, with the goal of cultivating ideal personality, the starting point of the ruler's moral cultivation, the basic support of educating the people's people, the main means of moral education and the basic strategy of "ruling by virtue supplemented by punishment". It is not only an ideal and realm, but also a political norm. This is also a political practice. As a social and political governance mode juxtaposed with the rule of law, the rule of virtue has its indelible value. First, it is conducive to the establishment of good official ethics. The first idea of rule by virtue is that rulers should set an example and play an exemplary role. Rulers should pay more attention to their self-cultivation and must constantly improve their moral quality. This is conducive to the establishment of good official morality. Second, it is conducive to people's sense of shame. The rule of virtue regards morality as the main way of social integration and emphasizes human self-discipline. Only shame can make people truly have the spirit of self-discipline. Confucius' "shame and dignity" is a profound expression of shame consciousness. In modern times, the sense of shame is the internal basis of law-abiding spirit. Third, it is conducive to laying a moral foundation for politics and law. The legitimacy of modern form only emphasizes that the law with legal form is the real law, but ignores the investigation of legal rationality. Rule by virtue moralizes politics and law, which may not conform to instrumental rationality, but still conforms to the requirements of value rationality. However, the rule of virtue also has obvious limitations: first, it may lead to pan-moralism, which is not conducive to political and legal independence. Rule by virtue is moral. It is dominated by morality and may lead to pan-moralism. From the perspective of pan-moralism, politics and law have lost their independent status, thus becoming the handmaid of morality. Second, the rule of virtue is always from the perspective of rulers, and there are undemocratic factors. Xu believes that the biggest problem of Confucian political thought is that it always considers political issues from the perspective of rulers, which is contrary to the practice of modern democratic politics. Third, ignore the cultivation of civic virtue. Subjects under the rule of virtue are negative, while citizens under the rule of law are positive. The negative subject leads to the lack of modern civic virtue, and civic virtue, civic awareness and right awareness are the internal driving force and constituent elements of the rule of law. Fourth, ignore the system construction. Rule by virtue is idealistic, overestimates human nature, and thinks that rulers can be self-disciplined through moral cultivation. Rule by virtue does not emphasize the restriction of power. It only requires that power be in the hands of virtuous people. Therefore, the rule of virtue has not established an effective system to restrain the power of rulers, especially the supreme ruler. Fifth, the rule of virtue failed on the issue of stability. The rule of virtue has built its hopes on sages and sages, but these are inevitable. There have been a lot of bad kings, tyrants and traitors in history. Even if individual sages appeared, they could not escape the "people's political action".

Xu's view of rule of law

Xu realized that the rule of virtue in Confucian traditional political philosophy had lofty realm and ideal, but it was difficult to realize in classical China. The reason is that it lacks a construction principle, and the effective rule of law in modern society is such a principle. The rule of law can be divided into three elements: spiritual element, substantive element and formal element;

Spiritual elements of the rule of law. The literal meaning of the rule of law is the rule of law, and its core is the supremacy of law. The rule of law is not only an idea, but also a system. The implementation of a system requires citizens to have a corresponding stable mentality, which is the spiritual element of the rule of law. In Xu's view, the so-called "law" of legalists is harsh and harsh, so it is an evil law, which is different from the good law pursued by modern rule of law. The standard of evil law lies in whether it is moral or not. The constitution itself is the institutionalization of freedom and democracy, so it should be in the highest position. The right culture is a foundation of the rule of law, so Xu thinks that it is difficult to realize the rule of law without personal right consciousness. The ruling party must act according to the constitution, otherwise it is illegal. Therefore, the concept of rule of law, the concept of supremacy of law, the concept of good rule of law and the concept of right culture are regarded as the spiritual elements of rule of law. There are only above people.

Essential elements of the rule of law. The essential elements of the rule of law refer to the principles and systems for the effective operation of the rule of law. The rule of law only restricts the compulsory activities of the government. Therefore, the rule of law means the existence of power restriction system and the observance of the principle of power balance. In Xu's view, the constitutional restriction on the power of rulers can be divided into three forms: the restriction of power organs, the restriction of legal rules and the restriction of society. The rule of law means the implementation of political responsibility. While enjoying power, rulers must also bear corresponding obligations and responsibilities. The rule of law also means that rights are guaranteed by the system. An objective law can effectively defend human rights and freedoms in the form of a system, and unprotected rights and freedoms are untrue.

Formal requirements of the rule of law. Xu regards judicial independence as the most important formal requirement. In addition, he also believes that the law must meet the following conditions: the law must be general and abstract, the law should be open, certain and predictable, and everyone is equal before the law.

Seeking the Unity of Rule of Law and Rule of Virtue