华中科技大学人权法律研究院柯岚教授（网络会议视频截图）
医者仁心与中国人权文化中的善理念
柯岚（华中科技大学人权法律研究院研究员）
新冠疫情的袭来，让东西方社会都经受了一次严峻的考验，不同的文化观念，不同的治理模式，都在应对这场灾难的危机处理中重新整合了自己的治理工具与文化资源。作为一个中国人，我不敢说这场灾难让我开始为自己国家的治理和自己文化的应对盲目自豪，但它确实让很多和我一样普通的中国人都重新认识了中国式治理和中国文化中一些很深刻的东西。
人权是近代以来世界社会的主流价值，但是人权的评价标准不可能是简单的和单一的。一个国家的人权状况如何，需要从多个角度去理解和评判。当代经济学和社会学的研究表明，个人主义的人权观是存在很大缺陷的。曾获诺贝尔经济学奖的印度著名经济学家阿马蒂亚.森（Amartya Sen）提出了对个人主义人权观的有力质疑，一个人的权利能否实现，取决于他（他）有没有实质性的“可行能力”（capability）。贫困的人、年老的人、残疾的人、有严重疾病的人，都是缺乏实现某些权利的“可行能力”的，假如对他们讲平等享受同等的自由人权，实际上是对他们不平等的。他们的基本人权要真正实现，需要社会共同体特别的关照，需要社会共同体从善理念出发做出特别的安排。要实现缺乏“可行能力”的弱势群体的基本人权，有时候可能不得不让并不缺乏“可行能力”的健康正常的大多数做出适度的牺牲，甚至对他们的权利和自由做出必要的限制。
阿马蒂亚.森在现代提出的实质人权观，是与中国传统的儒家哲学相通的。中国儒家哲学没有提出个人主义的人权观，但始终把缺乏“可行能力”的弱势群体视为社会共同体应当首先关照的对象。成书于汉代、收录先秦儒家学者学说的《礼记》托孔子之口，描写了“大同社会”的理想：“人不独亲其亲，不独子其子，使老有所终，壮有所用，幼有所长，鳏寡孤独废疾者皆有所养。”战国时期的儒家圣人孟子强调好的治理必须先救助鳏寡孤独的人：“老而无妻曰鳏，老而无夫曰寡，老而无子曰独，幼而无父曰孤；此四者，天下之穷民而无告者。文王发政施仁，必先斯四者。”在儒家哲学的理想社会中，缺乏“可行能力”的老幼、鳏寡孤独废疾必须能过上幸福的生活。假如他们的幸福被牺牲了，无论其他的群体有多么优厚的福利，这样的社会都不是值得追求的。这就是中国传统儒家哲学仁爱思想的出发点。假如一个社会牺牲了少数缺乏“可行能力”的群体的福利而得到的其余正常群体的福利总和，超过了不牺牲这些少数群体而得到的社会福利的总和，在这样两个选择之间，儒家哲学认为后一种社会才是真正善的社会。
在中国历史的漫长过程中，医者作为救死扶伤的群体，受到了儒家哲学的强烈影响，宋代以后更出现了医儒相通的现象。交托生死给医生，虽然这中间可能有付费，但这关系的本质是神圣的，是达于天界的。唐代著名医学家孙思邈一生救人无数，死后被尊为“药王”，中国的名山大川中遍布着供奉药王的庙宇。孙思邈在《大医精诚》中提出的，“凡欲为大医，必当安神定志，无欲无求，先发大慈恻隐之心，誓愿普救含灵之苦。”他认为“大慈恻隐之心” 是成为大医的首要条件。”“恻隐之心”是儒家哲学的心理学术语，孟子说“恻隐之心，仁之端也”。
在新冠疫情防控期间，中国的医生群体用他们的行动实践了中国传统文化中的仁爱哲学。近代以来西医引入中国，但是传统文化对医者的影响是非常深厚的。在常规时期，也许这种文化基因的影响还表现得不那么明显，但到了应对危机的非常时期，传统文化对医者群体的影响就会很自然地迸发出来，成为他们集体无意识的一部分。
在新冠疫情防控期间，张继先多位医生在疫情刚刚露出苗头的时候就敏锐地发出了警报，他们的敏感帮助中国政府尽早做出了武汉封城的决定，挽救了不知道多少人的生命。疫情防控期间中国共有34位医务工作者因公殉职，还有很多医务工作者，冒着生命危险彻夜超负荷工作，甚至不能回家和家人团聚，自己的孩子都要托别人照看。中国的医务工作者群体在新冠疫情防控期间用他们的行动为他们赢得了荣誉，他们的集体行动中深深积淀了来自于中国传统文化的仁爱精神。
在湖北省十堰市，一名确诊新冠肺炎的87岁老人，患有慢性阻塞性肺病、肺源性心脏病、高血压等11种基础性疾病，入院时喘息严重、呼吸困难。医院为老人配备了一个治疗专班，精准救治。住院治疗47天，老人病情多次反复，但医护人员一次次把他从生死线上拉了回来，直至康复出院。截至4月26日，湖北全省累计治愈出院新冠肺炎患者63604例，其中，80岁以上老人3600多人，100岁以上的7人。
经过中国医生的浴血奋战，武汉封城成功地完成了使命。自5月15日启动集中新冠肺炎核酸检测以来，截至5月24日，湖北省武汉市10天内累计通报新增无症状感染者218例、确诊病例1例。这座千万人口的城市终于消除了新冠疫情继续扩散的危机，成就是令世界瞩目的。也许武汉和中国为了这样的成果，付出了很多人短期牺牲自由的代价，也付出了GDP短期不能高速增长的代价，但是我们的社会保护了老幼和贫弱的群体，坚守了中国文化中原初的善的追求，这就是我们的收获。
Benevolent Hearts of Doctors and the Idea of “Good”
in Chinese Human Rights Culture
Ke Lan (Research Fellow, Institute for Human Rights Law,
Huazhong University of Science and Technology)
With the outbreak of the COVID-19 pandemic, the Eastern and Western societies have withstood a severe test. With different cultural concepts and governance models, they have reorganized their own governance tools and cultural resources in the crisis management against this disaster. As a Chinese, I dare not say that this disaster has initiated me to be blindly proud of how my country deals with the disaster with its governance and cultural response. However, it did bring many ordinary Chinese like me a fresh understanding of Chinese governance and something profound in the Chinese culture.
Human rights are the mainstream values of the global society in modern times, but the evaluation standards thereof cannot be simple and single. The status of human rights of a country needs to be understood and judged from many perspectives. Studies of contemporary economics and sociology reveal that the individualism–based view of human rights is deeply flawed. Amartya Sen, a famous Indian economist who won the Nobel Prize in Economics, has put forward a strong doubt against the individualism–based view of human rights by proposing that whether a person’s rights can be realized depends on whether he or she has substantive “viable capabilities.” The poor, the elderly, the disabled and the severely ill all lack “viable capacities” to realize certain rights, and if they are treated as equals in enjoying the same human rights and freedoms, they are not treated equally in reality. In order to realize their basic human rights, they need special care from the social community which should have special arrangements for them from the idea of “good.” To realize basic human rights of vulnerable groups lacking “viable capacities,” it may sometimes be necessary to allow the healthy and normal majority who do not lack “viable capacities” to make modest sacrifices and even be imposed with necessary restrictions on their rights and freedoms.
Amartya Sen’s view of substantive human rights in modern times is consistent with the traditional Confucian philosophy in China. The Chinese Confucian philosophy has not put forward the individualism-based view of human rights, but it always regards the vulnerable groups who lack “viable capacities” as the objects prioritized with the social community’s care and attention. Li Ji (The Book of Rites), written in the Han Dynasty (202 BC–220) and incorporating the theories of the Confucian scholars in the period before the Qin Dynasty (221–206 BC) described the ideal of “Datong society” (a society of great harmony) in the voice of Confucius. “A person should not only take his or her own ones as relatives, or regard his own ones as his sons, so that the old are cared in final years, the strong find themselves good to do something and the young have support for their growths. In this way, widowers, widows, orphans, the childless and the disabled are cared for.” Mencius (c. 372–c. 289 BC), a Confucian sage of the Period of Warring States (403–221 BC), stressed that good governance should prioritize succoring widowers, widows, orphans and the childless. “An old man without a wife is a widower; an old woman without a husband is a widow; an old person without a child is childless; a child without a father is an orphan. These four categories of persons are poor people without ways to relieve themselves in the world. King Wen of Zhou (reign: c. 1099–1056 BC), when implementing his governance of benevolence, must give priorities to these four categories of people.” In the ideal society of the Confucian philosophy, the old, the young, the widowers, the widows and the disabled, who lack the “viable capacities,” must be able to live a happy life. A society with their happiness sacrificed is not worth pursuing, no matter how generous welfare other groups have access to. This is the starting point of the benevolent and loving thought of the traditional Chinese Confucian philosophy. When the sum of the welfare of the normal groups by sacrificing the welfare of the minor groups lacking “viable capacities” exceeds the sum of the social welfare of those groups without sacrificing these minor groups, the Confucian philosophy maintains that the latter society is truly good.
In the long course of Chinese history, as a group to heal the wounded and rescue the dying, doctors have been strongly influenced by the Confucian philosophy. Since the Song Dynasty (960–1279), there have appeared people being doctors and Confucians at the same time. When one’s life and death is entrusted to a doctor, such a relationship, despite the possible fee, remains essentially sacred, even connected with heaven. Sun Simiao (581–682), a famous physician in the Tang Dynasty (618–907), saved countless lives. After his death, he was honored as the “King of Medicine” whose commemorative temples are found all over China’s famous mountains and rivers. In his book Dayi Jingcheng (The Great Physician’s Absolute Sincerity), he put forward that “Whenever someone wants to become a great physician, he must quiet his spirit and stabilize his will, he must be free of wants and desires, and he must first develop a heart brimming with great compassion and empathy. He must pledge to devoting himself completely to relieving all sentient beings from their sufferings.” He believed that “to develop a heart brimming with great compassion and empathy” is the first indispensable quality to become a great physician. “A heart of compassion and empathy” is a psychological term of Confucian philosophy, with Mencius saying that “a heart of compassion and empathy is the beginning of benevolence.”
During the COVID-19 epidemic prevention and control, Chinese doctors have put the benevolent and loving philosophy in traditional Chinese culture into practice. Despite the introduction of the Western medicine into China since modern times, the traditional culture has maintained its profound influence on doctors. In normal periods, the influence of such cultural genes may not be so obvious. However, in critical periods against crises, the influence of traditional culture on the medical community will naturally burst out to become a part of their collective unconsciousness.
During the COVID-19 epidemic prevention and control, Zhang Jixian and other doctors issued sharp alarms when the pandemic began to crop up. With their sensitiveness, the Chinese government made an early decision to lock down Wuhan as soon as possible, thus saving countless lives. During the epidemic prevention and control period, a total of 34 medical workers in China died in the line of duty. In addition, many other medical workers have risked their lives to work overtime day and night, and even could not go home to reunite with their families, leaving their children to be taken care of by others. During the COVID-19 epidemic prevention and control period, Chinese medical workers have won honor for themselves with their actions, and their collective actions present a profound refection of the spirit of benevolence and love from Chinese traditional culture.
In Shiyan City, Hubei Province, an 87–year–old man was diagnosed with COVID-19. Also suffering from 11 basic diseases such as the chronic obstructive pulmonary disease, pulmonary heart disease, hypertension and others, he had severe wheezing and dyspnea when he was admitted to a hospital. The hospital dispatched a special treatment team to offer precision curing for the old man. In his hospitalization lasting 47 days, the old man’s illnesses relapsed many times, but the medical staff pulled him back from the brim of death again and again till his recovery and discharging from the hospital. As of 26 April, a total of 63,604 COVID-19 patients had been cured and discharged in Hubei Province, including over 3,600 persons over 80 years old and 7 persons over 100 years old.
After the dauntless fights of Chinese doctors, the lockdown of Wuhan city successfully completed its mission. Since the start of concentrated nucleic acid tests of the COVID-19 on May 15, Wuhan City in Hubei Province, as of May 24, had reported a total of 218 new asymptomatic infection cases and one confirmed case in the past ten days. This city, with a population of over ten million people, finally eliminated the crisis of the continuous spread of the COVID-19 pandemic, with its achievements drawing worldwide attention. For such achievements, perhaps Wuhan and the rest of China have sacrificed the short-term freedom of many people and a high GDP growth rate in a short time. However, our society has protected the old, the young, the poor and the weak and adhered to the original aspiration of “good” in Chinese culture. This marks our harvest.
