论左宗棠的法律思想与实践

【作者】 徐明；

【导师】 丁凌华；

【作者基本信息】 华东政法学院 ， 法律史， 2004， 硕士

【摘要】 左宗棠作为中国近代史上的重要人物之一,研究他的著作和文章很多,但涉及其法律思想的著述则少见。至于将其法律思想与实践联系起来一并考察的写法,则是一种新的尝试。而实践更能体现法律思想的价值,因此我选择了这个题目——论左宗棠的法律思想与实践,以期真实生动地反映出左宗棠鲜为人知的一面。本文采取了由内及外的写作顺序,将左宗棠的法律思想依其实践领域,从军事、吏治、洋务三个方面加以阐述。十九世纪中叶,清王朝处于内外交困的境地,帝国大厦濒于崩溃。左宗棠值危乱之际,“以戎幕起家”,用军事手段镇压农民起义,戡乱于已形。在治军上,他提出了以法治军的思想,主张严明军纪,整饬军务,并通过制定军法规范军人的行为。在治乱上,他将中国传统的“德刑并用”的法律思想引入到军事领域,确立了“抚剿结合”的军事法律思想。并在具体作战中,注意把握各起义的性质与特点,灵活地调整抚、剿的主次,为军事的任务胜利完成提供了策略保证。然“天下大乱,由于吏治不修”,因此左宗棠主张修吏治,弭乱于未发。他遵循儒家的“人治”观,把讲求吏治的目光集中在治吏上,给行政法中的官吏管理提供了一个崭新的视角。他主张兼顾课吏与亲吏两端,尤其是对易遭忽视的后者,他提出了训吏、恤吏,以期<WP=4>提高官吏素养,加强后续培养。通过“修军政”、“饬吏事”,左宗棠竭其所能为清王朝解内忧,但同时亦不忘靖外患。他以面世的态度认清了中西方间的差距,主张兴办洋务,学习西方先进的技术文化。他“守道救时”,提出“道本艺末”的思想指导洋务实践,隐含着“中体西用”观,将法律对西学的调整范围缩小限定在西艺上。并进一步提出了“师远人之长,还以治之”的原则,创办了一批洋务企业,以实践具体阐释这一原则。为了抵制西方列强的军事侵略与经济侵略,左宗棠将治夷的层面由军事拓及经济,并为治夷指引了实现的途径,以求国家独立富强,充分展现了其爱国主义精神。他在“治夷如何”与“如何治夷”上的新认识,是对魏源“师夷长技以制夷”思想的继承和发展,在同时代生人中可谓思想先进。本文将左宗棠置于晚清历史大变革的背景中,结合其军政生涯和洋务实践,试图展现其法律思想的内容。笔者仔细研读了左宗棠的奏稿、书牍、札件、文集等资料,并参考有关的文献,从中择取了论据,将论题从军事、吏治、洋务三个方面展开论述,以期抛砖引玉,求得学术界对这一问题更加深入的研究。研究左宗棠的法律思想与实践,不仅对认识左宗棠个人,而且对把握近代中国社会的变革,都具有重要的历史价值,而从中汲取有益的历史经验古为今用,将赋予这一课题重大的现实意义。更多还原

【Abstract】 Zuo Zong-tang was a historical character with great influence on China’s modernhistory. There are many books and articles about him, but less research on his legalthought. As to the writing of linking his legal thought to practice, it belongs to a newattempt so far. Since his practice can represent the value of his legal thought better, I havechosen the topic, Talk about Zuo Zong-tang’s Legal Thought and Practice. I expect toshow the aspect rarely known by the people of Zuo Zong-tang truly and vividly. The papertakes the writing sequence from inside to outside and according to his practical fields,explains his legal thought from three respects of military affairs, administration ofofficials and foreign affairs. In the middle period of the 19th century, the Qing Dynasty was in the condition ofhaving difficulties at home and abroad, which was on the brink of collapsing. Facing thecrisis, Zuo Zong-tang “built up with his military intelligence”, suppressed peasantuprisings by force and arms and put an end to existing riots. In managing troops, he putforward the thought of ruling the army by law and claimed that strict military disciplineshould be implemented. He set down some military codes in order to regulate armymen’behaviors. In civil wars, he introduced traditional legal thought about “the combination ofhumanity and punishment” to the military field and accordingly established the militarylegal thought of “the combination of pacification and extirpation”. And in fighting againstpeasants, he paid attention to grasping the nature and characteristic that existed in eachrise and adjusted the primary and secondary of pacification and extirpation in a flexibleway, so provided the strategy assurance by which the military tasks were finishedsuccessfully. However he realized that “peasant uprising frequently took place because theadministration of officials wasn’t put in order”. Therefore he advocated rectifying it inorder to eliminate potential threat. He followed the Confucian view of “rule by men”,hence focused his mind on how to manage officials and offered a brand-new visual angle<WP=6>to officials’ management in the administrative law. He considered that both supervisionand solicitude are important. Especially to the latter always ignored, he put forward theopinion of training and sympathizing in the hope of improving their accomplishments andpromoting their follow-up growth. Through “strengthening the forces to pacify rebellions”and “administrating officials”, Zuo Zong-tang did his best to get rid of the internalsufferings for the Qing Dynasty. But he didn’t forget to pacify foreign aggressions at thesame time. With the attitude of facing the world, he was conscious of the disparitybetween China and the west. Thus he initiated the Westernization Movement and began tostudy the advanced technological culture in the west. He firmly “safeguarded the feudalitywhen saving the Qing Dynasty” and proposed the thought of “Morals is the root whiletechnology is the tip”, similar to Zhang Zhi-dong’s view of “Chinese knowledge is thefundamental while foreign knowledge is the incidental”. In this way, he limited theadjusting range of law on the western skills. Further he proposed the principal “learn fromand tame the west” and established some foreign affairs’ enterprises, which explained thisprinciple concretely. In order to resist military and economic invasion of western powers,he held that China must fight back from two respects of military affairs and economy andguided the path about how to realize for national independence and prosperity, which fullyembody his patriotism. His far sight was advanced at that time, which inherited anddeveloped Wei yuan’s thought. The article places Zuo Zong-tang in the context of great transform of the late QingDynasty and combines his military-political career and the westernization practice,attempts to display the content of his legal thought. I have carefully read Zu更多还原