中国传统法律文化的反思与重读

发布时间：2018-10-30 11:32

【摘要】：中国传统法律文化是20世纪60年代以后开始受到西方学术界重视的一个话题。在中国,对中国传统法律文化进行系统广泛的研究探讨,则是80年代末以后的事情。现今有关中国传统法律文化的讨论已延续了二十余年,至今还远没有结束。这是因为中国传统法律文化理论始终与法律现代化、法律移植、法的资源取向、本土化、法律多元等诸多问题“纠缠”在一起,较为复杂。事实上,这些都只是在说明同一个问题,而仅仅是表述方式不同而已。关于传统法律文化的大量类型化概括早已深入人心,而面对法治建设的困境,传统法律文化的负面影响又往往被看作是制约法治进程的主要因素。通过本文的解析,在传统法律文化研究领域中,如果借鉴传统法律文化对社会他者关注方面的见解,有助于我们不断反省自己的立场,拓宽研究的视域,从而重新检讨传统法律文化与法治建设的关系。简言之,在影响法治建设的诸多因素中,文化是一个方面,现实的社会经济条件也是一个方面,而在文化因素中,不能仅仅强调传统法律文化的负面影响,也要看到一百多年来对传统法律文化进行破坏所造成的恶果,以及西方法律文化的内在缺陷和深层危机。写作本文明确这样一个观点:传统决不意味着腐朽、保守;民族性也绝不是劣根性。传统是历史和文化的积淀,只能更新不能铲除,失去传统就丧失了民族文化的特点,就失去了前进的历史与文化的基础。我们需要从固有的法律传统中,引出滋润了五千年中国的源头活水,需要科学地总结和吸收有价值的因素。经验证明,对传统的反思越深刻、越彻底、越能准确地把握其益处,从而创造出反映现代特色的中国法学。有鉴于此,本文写作的目的很明确,就是希望古人所造就的传统法律文化在我们这个时代不再受到批判,而是也能如西方启蒙时代的古希腊、罗马法那样受到人们的尊重和弘扬,成为现代法律发展的动力。通过本文来纠正现代社会对中国传统法律的误解和偏见,寻找可为现代法律发展所借鉴的历史经验,从而摆脱以往对中国传统法律以批判为主的基调,从中体会到中国传统法律文化的大智大慧。
[Abstract]:Chinese traditional legal culture is a topic that has been paid more attention by western academic circles since 1960's. In China, a systematic and extensive study of Chinese traditional legal culture occurred in the late 1980s. The discussion on Chinese traditional legal culture has lasted for more than 20 years and is far from over. This is because the theory of Chinese traditional legal culture is always "entangled" with the modernization of law, the transplantation of law, the resource orientation of law, localization, legal pluralism and so on. In fact, these are just illustrations of the same problem, but only in different ways. A large number of typologized generalizations of traditional legal culture have long been deeply rooted in the hearts of the people, and in the face of the dilemma of the construction of the rule of law, the negative influence of traditional legal culture is often regarded as the main factor restricting the process of the rule of law. Through the analysis of this paper, in the field of traditional legal culture research, if we draw lessons from the views of traditional legal culture on the other aspects of society, it will help us to constantly reflect on our own position and broaden the horizon of research. In order to re-examine the relationship between the traditional legal culture and the construction of the rule of law. In short, among the many factors that affect the construction of the rule of law, culture is one aspect, and the social and economic conditions are also one aspect. In the cultural factor, the negative influence of traditional legal culture should not be emphasized. We should also see the evil effect caused by the destruction of the traditional legal culture over the past hundred years, as well as the inherent defects and deep crisis of the western legal culture. This paper makes it clear that tradition does not mean decay and conservatism, nor is nationality inferior. Tradition is the accumulation of history and culture, which can only be renewed and can not be eradicated. Without tradition, the characteristics of national culture will be lost, and the foundation of history and culture will be lost. We need to draw from the inherent legal tradition, nourishing five thousand years of China, need to scientifically sum up and absorb valuable factors. Experience has proved that the more profound and thorough the reflection on the tradition is, the more accurate it is to grasp its benefits, thus creating a Chinese law that reflects the modern characteristics of Chinese law. In view of this, the purpose of this paper is very clear, that is, I hope that the traditional legal culture created by the ancients will no longer be criticized in our time, but will also be like ancient Greece in the Western Enlightenment era. Roman law was respected and promoted by people, and became the motive force of the development of modern law. Through this article, we can correct the misunderstanding and prejudice of Chinese traditional law in modern society, look for the historical experience that can be used for reference in the development of modern law, so as to get rid of the tone of criticizing Chinese traditional law in the past. From the experience of Chinese traditional legal culture great wisdom.
【学位授予单位】：西北师范大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D909.2

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