内容摘要：董仲舒的德主刑辅思想在整个中国法律思想史上占有重要地位，其思想是以儒家思想为核心，吸收黄老思想、阴阳学说等思想精华而形成的新儒学思想。该思想的形成，标志着中国古代正统法律思想的确立。论文共有四个部分，第一部分包括董仲舒德主刑辅思想的内容和该思想在西汉法律上的实践，他的德主刑辅思想理论由天命神权思想，以及他的“阳德阴刑”论和“性三品”说共同构成；而它在西汉法律上的实践主要体现为“恤刑慎罚”及“春秋决狱”的司法审判原则。第二部分讲述了该思想产生的历史背景和思想渊源。该思想是在隐藏着深重政治经济危机的社会历史背景下产生的；它是在对孔、孟思想加工创新的的情况下产生的。第三部分讲的是董仲舒德主刑辅思想的积极影响，主要包括先秦各家思想的集大成者、“天人合一”思想包含的绝妙思维方式、丰富了儒学的兼容性三大方面。第四部分是该思想可资借鉴的意义，主要包括“重道德修养，从自身做起 ”、“为政者的表率作用”、“倡导教化为先，重道德教育”、“罚当其罪，罪刑相适应”、“德刑并举，以法律促进道德之完善”等五大方面。
关键词：德主刑辅 思想渊源 实践 影响 价值
Abstract: “Rule both of virtue and by law” of Dong Zhongshu hold an important position in Chinese ancient thoughts. As a famous thinker and founder of apotheosized Confucianism, he is prestigious for “the head of Confucians” at that time. Dong Zhongshu had a high status in the academic circle of ancient China, and his thought had a heavy affect in quite a long time. It is in Dong Zhongshu’s thought that the development of Confucianism has underwent a great turn from prominent idea to official theory.Paper consists of four parts. The first part includes the content of his “Rule both of virtue and by law” and its practice of western han dynasty law. By the destiny theocratic thought, sun moral lunar punishment and sex expanded constitute his theory. It is the practice of law in the western han dynasty mainly embodied penalty absolve T-shirt punishment and Chun qiu statute judicial principle. The second part about this thought the historical background of the emergence and the thought origin. This thought is hidden in the political and economic crises grave social and historical background; It is in the process of Confucius and Mencius thought innovation produce. The third part is about his thought’s positive impact, mainly includes the pre-qin schools could originator, “Nature and humanity” ideology contains the excellent way of thinking, riching Confucianism compatibility. The fourth part is the ideological reference significance, mainly includes “heavy moral accomplishment, starts from oneself”, “role model”,the nonmoralism” advocated moral education first, heavy enlightenment”, “the penalty when its sin, adapt to punishment,” “Rule both of virtue and by law” to promote itself, such as moral perfection and so on.
Key words: Rule both of virtue and by law, thought origin practice , influence, value
