差序的法律——林权制度的历史实践
发布时间：2018-07-25 16:03
【摘要】： 本书根据安徽省绩溪县善庄镇择塘村近八个月的“林权”田野调查所完成。 本书的研究主题属于“林权”范畴。但问题的核心不是“林权”的语义分析,也不是“林权”的法理建构,而是开展“林权”之于中国经验的历史实践研究。 本书采用“整体生存伦理”作为研究策略,努力把“国家视角”和“民间视角”结合起来,通过“在场式”田野工作,以“事件束”为切入点,把“林权”置于宗族、村落、信仰、法律、村治、市场、水利等整体历史—文化纬度,积极挖掘“在地范畴”,全面审视徽州文化场境下“林权”实践及其再生产。调查结果表明,“林权”的国家法“表达”和民间法“实践”的发生背离,这既是“整体生存伦理”考察的背景,也是“整体生存伦理”实践的结果。当然,本书研究宗旨不在于揭示“表达”和“实践”的二元化,而在于考察“整体生存伦理”场境下林权实践“法律内卷化”,即由于国家法的规则理性与民间法的秩序逻辑之间的文化区隔,造成有法律而少秩序的制度性事实。其具体表现为：催生山林独联体,激发林权纠纷、引起械斗上访、灰色势力镶嵌村庄、林权集中少数能人、冲击村庄治理、影响法律权威、恶化生态环境等等。 本书尝试着呈现“林权”研究新发现：其一,林权证还是一种形式性财产,充其量只是林权的“象征资本”；其二,“山林独联体”无法实现西方产权形态,反倒造成林业经济迟缓和生态效益下降；其三,外来资本“镶嵌”村族共同体,正在冲击农村治理及其稳定：其四,中国“身份性”林权尚未(甚至难以)让渡于“契约性”林权,“祖山”仍是农民“道义经济”的生存依赖；其五,“整体生存伦理”场境下“林权”实践还会导致“邻接性”权利(例如水权、矿权)的再生产。其六,“法律内卷化”是转型时期国家法与民间法“嵌合”实践的结果,也将有效推进中国“回应型”法治建设。
[Abstract]:This book according to Jixi County, Shanzhuang Town, Xuetang Village, nearly eight months of "Forest right" field survey completed. The subject of this book belongs to the category of forest rights. But the core of the problem is not the semantic analysis of "forest right" nor the legal construction of "forest right", but the historical practice study of "forest right" in Chinese experience. This book adopts "the whole survival ethics" as the research strategy, diligently unifies "the national angle of view" and "the folk angle of view", through "the presence type" the field work, takes "the incident bundle" as the breakthrough point, puts "the forest right" in the clan, the village, Faith, law, village government, market, water conservancy, etc., such as the whole historical and cultural latitude, actively excavate "in the category of land", comprehensively examine the practice and reproduction of "forest right" in Huizhou cultural field. The result shows that the deviation between the expression of "forest right" and the "practice" of folk law is not only the background of "whole survival ethics", but also the result of "whole survival ethics" practice. Of course, the purpose of this book is not to reveal the dualism of "expression" and "practice", but to examine the practice of forest rights in the context of "holistic survival ethics". That is, due to the cultural division between the rule rationality of the state law and the order logic of the folk law, the institutional fact that there is law but little order is created. Its concrete manifestation is: to give birth to the mountain forest CIS, to stimulate the forest right dispute, to cause the armed fight to petition, the gray force to inlay the village, the forest right to concentrate a few talented people, to impact the village governance, to influence the legal authority, to worsen the ecological environment and so on. This book attempts to present new findings in the study of "forest rights": first, forest tenure certificates are still formal property, at best they are "symbolic capital" of forest rights; second, "mountain forest CIS" cannot realize the western property right form. On the contrary, the forestry economy is sluggish and the ecological efficiency is declining. Third, the external capital "inlay" the village community is impacting the rural governance and its stability: fourth, China's "identity" forest rights have not yet been (or even difficult to) transfer to the "contractual" forest rights, "Zushan" is still farmers'"moral economy" survival dependence. The practice of "forest right" under the environment of "whole survival ethics" will also lead to the reproduction of "adjacent" rights (such as water rights and mining rights). Sixthly, the "law in volume" is the result of the practice of "chimera" between the state law and the folk law in the transitional period, and it will also effectively promote the construction of the "responsive" rule of law in China.
【学位授予单位】：上海大学
【学位级别】：博士
【学位授予年份】：2010
【分类号】：D922.63;F326.2
本文编号：2144334
[Abstract]:This book according to Jixi County, Shanzhuang Town, Xuetang Village, nearly eight months of "Forest right" field survey completed. The subject of this book belongs to the category of forest rights. But the core of the problem is not the semantic analysis of "forest right" nor the legal construction of "forest right", but the historical practice study of "forest right" in Chinese experience. This book adopts "the whole survival ethics" as the research strategy, diligently unifies "the national angle of view" and "the folk angle of view", through "the presence type" the field work, takes "the incident bundle" as the breakthrough point, puts "the forest right" in the clan, the village, Faith, law, village government, market, water conservancy, etc., such as the whole historical and cultural latitude, actively excavate "in the category of land", comprehensively examine the practice and reproduction of "forest right" in Huizhou cultural field. The result shows that the deviation between the expression of "forest right" and the "practice" of folk law is not only the background of "whole survival ethics", but also the result of "whole survival ethics" practice. Of course, the purpose of this book is not to reveal the dualism of "expression" and "practice", but to examine the practice of forest rights in the context of "holistic survival ethics". That is, due to the cultural division between the rule rationality of the state law and the order logic of the folk law, the institutional fact that there is law but little order is created. Its concrete manifestation is: to give birth to the mountain forest CIS, to stimulate the forest right dispute, to cause the armed fight to petition, the gray force to inlay the village, the forest right to concentrate a few talented people, to impact the village governance, to influence the legal authority, to worsen the ecological environment and so on. This book attempts to present new findings in the study of "forest rights": first, forest tenure certificates are still formal property, at best they are "symbolic capital" of forest rights; second, "mountain forest CIS" cannot realize the western property right form. On the contrary, the forestry economy is sluggish and the ecological efficiency is declining. Third, the external capital "inlay" the village community is impacting the rural governance and its stability: fourth, China's "identity" forest rights have not yet been (or even difficult to) transfer to the "contractual" forest rights, "Zushan" is still farmers'"moral economy" survival dependence. The practice of "forest right" under the environment of "whole survival ethics" will also lead to the reproduction of "adjacent" rights (such as water rights and mining rights). Sixthly, the "law in volume" is the result of the practice of "chimera" between the state law and the folk law in the transitional period, and it will also effectively promote the construction of the "responsive" rule of law in China.
【学位授予单位】：上海大学
【学位级别】：博士
【学位授予年份】：2010
【分类号】：D922.63;F326.2
【引证文献】
相关期刊论文 前2条
1 王永红;;我国林权改革视阈下林权的界定论[J];广西政法管理干部学院学报;2012年03期
2 林辉煌;;林权制度的法律实践与地方建构——基于粤北高村的调查[J];民间法;2012年00期
相关硕士学位论文 前3条
1 李丽媛;税收对林业上市企业资本结构的影响研究[D];东北林业大学;2012年
2 祝伟友;九三管理局生态林业建设现状及发展对策研究[D];吉林大学;2012年
3 孙文芳;集体林权制度改革中的利益相关者分析[D];华中师范大学;2012年
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