伍晓明 新西兰坎特伯雷大学
Wu, Xiaoming, University of Canterbury
原文Original
伦理责任与法律公正——《孟子》中瞽瞍杀人问题之浅析
孟子的对话者桃应向孟子提出了一个问题：假设舜为天子，皋陶为执法者，而舜的父亲瞽瞍却杀了人，应该怎么办？此一问题蕴含着某种伦理困境，因此并无任何轻易的解决可能。孟子一方面并不否认皋陶拘捕天子之父的正当性，另一方面却又让舜背着父亲逃走。此一逃避应如何解读？舜在瞽瞍杀人后之选择挈父而逃，这种情况并不能立即就被读为：舜无视法律，或者舜为了亲情而出卖法律。孟子并没有让舜去禁止皋陶抓人，而这表明，舜并未以自己身为天子的绝对权威来阻止法律的执行，尽管舜理论上应该有此权威。舜之挈父而逃似乎构成了某种消极的抗议。但此抗议却并非是抗议其父之应该依法而被抓，亦即，不是抗议法律之应该被毫无例外地执行，而是抗议法律本身之某种根本性的无能为力：法律在某种意义上以某种方式限制了我对每一“无与伦比”的他者所负有的无限责任。这就是说，我必须在法律面前某种程度地放弃他者，亦即，放弃我对每一特定的、“无与伦比”的他者的无限责任。于是（孟子让）舜（选择了）逃避法律。但此一逃避于消极“抗议”之中亦同时承认了法律的必要。为了公正，为了我对所有他者的责任，我必须同意放弃我对每一他者所负有的无限责任，否则就不可能有公正。如果允许瞽瞍杀人而不受法律惩罚，那对被杀者就是不公正的。所以，为了公正，就必须在不可比较者之间进行比较，在自己的无可替代的父亲和被他所杀的人之间进行比较，并依据一视同仁的原则做出判决。但一视同仁的法律并不考虑每一他者的独特情况。而这就是说，在伦理责任与法律公正之间必然始终都存在着困难的张力。本文试图初步探讨此种张力或困境，并认为，在思考和分析此种张力或困境之时，我们需要放弃寻求非此即彼之解决的思想习惯，而首先坚持在此困境之中。这正是我们今天的思想的责任。
译文Translation
Ethical Responsibility and Legal Justice: A Preliminary Analysis of the Question of Gu Sou’s Homicide in Mencius
Mencius’s dialogue partner Tao Ying poses this question to Mencius: “Suppose that Shun is ruling the country and Gao Tao is in charge of the execution of the law; now what should be done if Shun’s father Gu Sou kills somebody?” This question implies a certain ethical impasse, thus there will be no easy solution. On the one hand Mencius does not deny that it is justified if Gao Tao detains the king’s father, but on the other hand he allows Shun to escape together with his father, Shun carrying Gu Sou on his back. How should one interpret this flight? The situation that Shun escapes with his father after the latter has killed someone cannot simply be understood in a way that Shun neglects the law, or that Shun betrays the law because of family ties. Mencius does not have Shun prohibit Gao Tao to detain a person, and this shows that Shun does not obstruct the execution of the law just because he enjoys the absolute authority of a king, even if Shun would have the power to do so in theory. In fact the flight of Shun together with his father amounts to a kind of passive resistance. However, this resistance is not against the rule that his father should be detained according to the law, and it is not a resistance against the rule that the law should be executed without any exception, but it is rather a resistance against a kind of basic helplessness of the law: in some sense the law somehow limits my unlimited responsibility towards every “incomparable” other. In other words, before the law I must to some extent give up the other, that is to say, I have to give up the unlimited responsibility towards any special “incomparable” other. Thus Mencius lets Shun choose the way of avoiding the law. But this flight and the passive “resistance” at the same time acknowledges the necessity of the law. In order to be just and be faithful to the responsibility I have towards any other person, I must agree to give up the unlimited responsibility I have towards any other person, and otherwise justice and fairness cannot exist. If we allow that Gu Sou kills somebody and is not affected by legal punishment, then it is unfair to the one who was killed. Thus, for the sake of justice we must compare between things that cannot be compared, one must compare between the father, who is irreplaceable, and the person who was killed by him, and then one must make a sentence according to the principle of “fairness for all” (yi shi tong ren). But the principle of “fairness for all” does not consider the special situation of each and every person, and this means that there will always be a difficult tension between ethical responsibility and legal justice. This paper tries to explore this kind of tension or difficulty and the author thinks that when we consider or analyze this tension and difficulty, we should give up the habit of finding an either-or solution. First we should hold out in this difficulty and tension, and exactly this is the responsibility of our thinking today.