Modern Criticism Of Rule By Law Instrumentalism Of Pre-Qin Legalists

In the context of advancing the modernization of national governance,building national governance system and enhancing national governance capabilities with the spirit and method of rule by law have become core issues.Pre-Qin Legalists,as the school that first proposed "rule by law" in the history of our country,their"rule by law" has become a hot spot of academic circles.We are trying to find fine genes of rule by law that may exist in China,and committing to the inheritance or transformation of these essence.But in this process,we must maintain a rational attitude,treat Legalists’ thoughts objectively and comprehensively,and correctly understand the nature of its rule by law instrumentalism,so as to provide a mirror for the contemporary rule by law.The legal theory of Legalists is called "rule of law" because it contains many factors of rule of law.Legalists emphasized the principles of "standing according to the situation" and "not being forced" in legislation,advocated the requirements of"distributing to the public","commendation and reward must be punished" and "no hierarchy of punishment"in the implementation of law,and advocated the characteristics of "being clear and easy to know","changing from time to time" and"standing but not changing",all of which are in common with the theory of rule by law and thus have progressive significance.However,these are only modern scholars’reinterpretation of Legalists’ thoughts of "rule by law" with the help of the concept of rule by law,and they are advanced ideas which are explored purposefully.Legalists’thoughts of "rule by law" is based on the standard view of"king and country first"、in order to realize the value pursuit of rich country and strong army,they chose the governance means of ruling the people and maintaining autocracy,which contains the distinct essential characteristics of instrumentalism.Looking back to the society at that time from a historical perspective,it can be found that "rule by law" of Pre-Qin Legalists belongs to the same category as the morality and etiquette on which the monarch governed the country,both of which are a kind of"governance".According to the ideology of good and evil and pragmatic and utilitarian values of human nature,the Legalists chose the governance means which are more practical and more in line with the needs of governance compared with other governance methods.Their explanation of "what is law",the overall design of the operation of "rule by law"such as legislation and law enforcement,and the guarantee system combining "magic potential" all profoundly reflect the fundamental nature of the instrumentalism of rule by law,that is,the so-called "rule by law" is only a tool to implement social control and autocratic rule.At the same time,the implementation of"rule by law" by Legalists caused a series of irreparable serious harm to the development of ideology and culture and the construction of social order at that time.Therefore,we should critically reflect on the essence of instrumentalism when we explore the theory of "rule by law" of Pre-Qin Legalists.Legalism "rule by law" is always not make fundamental limits on sovereign power,but pay attention to the rulers control,drive and repression of the people,one-sided pursuit of the goal of the new army and to move towards the extreme utilitarianism,and ignore the law shall be the connotation of entity value such as human rights,it is of respecting the sovereignty as the core,to serve the dictatorship of the tool.For the rule by law in contemporary China,the instrumentalism of rule by law has important warning significance.In this way,we can be alert to the instrumentalism tendency of rule by law which may exist in the process of China’s rule by law construction and national governance,and regard the rule by law as a tool serving other external goals while ignoring its intrinsic value.At the same time,on this basis,the main connotation of formal rule of law and substantive rule of law is discussed,the relationship between them is correctly understood,and the inevitable trend of changing from the formal rule of law which highlights the meaning of rule of law as a tool to the substantive rule of law which contains the value of human dignity and so on is made clear.