一体与多元：清代新疆法律研究（1759-1911年）
发布时间：2019-04-15 11:32
【摘要】：清代承袭并发展了汉唐以来的经验,对新疆地区的治理更为深入与广泛,民族立法与法律治理方面尤其突出,其得失足资后世之治。由于复杂的地理与人文等因素,清代统一新疆后采取因俗而治的政策,新疆地区国家制定法、宗教法以及习惯法同时并存,形成法律体系及司法实践的一体与多元格局。一体之下多元并存,多元法律寓于一体,成为清代新疆法律发展的基本脉络和突出特点。 论文分导论、论文主体与结论三部分。 导论部分主要包括:论文的研究缘起、主题与框架;与论题相关领域的研究述评及本论文的研究意义与价值;论文的研究范围、基本概念与资料的说明。 论文主体部分共分六章。论文前三章主要从法律渊源、司法体系、基层控制三个角度展现清代新疆法律“一体与多元”的实态,第四章则以档案资料为主论述清代新疆以政府为主导的法律的一体化构建。第五章重点分析清代新疆法律“一体与多元”格局形成与发展的历史渊源以及政治基础与法理依据。第六章就清代新疆法律的实践经验与理论价值展开论述。实践经验是对清代新疆法律治理的历史反思。理论价值部分则是以“一体与多元”为主线的清代新疆法律研究在理论方向的进一步延展,是从清代新疆法律这个中观层面与地域法角度出发对中华法系、民间法以及法律多元等问题作出的重新审视与检讨。 结论部分为论文基本观点的概括与总结: 1.清代新疆法律是传统中国多元法律文化之丰富内涵在边疆多民族地区的具体体现,是清代法律的重要组成内容。 2.清代新疆军府制时期的法律基本是民族、地域、宗教文化三者合一制度安排与权力配置下的板块式的多元。 3.清代新疆法律是以国家制定法为主体的内部多元异质的法律制度及运作体系。较为突出的表现为伊斯兰教法与国家制定法之间的差异。 4.清代新疆多元法律的一体化构建以新疆建省为分界呈动态变化。建省后板块式的多元格局逐步被打破,法律一体化进程有所推进,文化意义上的一体化构建逐渐起步。 5.在同一政治框架之下以国家制定法为主导,以大一统为价值目标,多元法律之间相互协调形成一个整体始终是清代新疆法律的发展方向与趋势。
[Abstract]:The Qing Dynasty inherited and developed the experience since Han and Tang dynasties, and the governance of Xinjiang region was more in-depth and extensive, especially in the aspects of national legislation and legal governance, and its gains and losses in the governance of future generations. Due to the complicated geographical and humanistic factors, after the unification of Xinjiang in Qing Dynasty, the policy of governing according to customs was adopted. The law, religious law and customary law of Xinjiang region coexisted at the same time, and formed a whole and pluralistic pattern of legal system and judicial practice. The coexistence of multi-elements and multi-laws in one became the basic vein and outstanding characteristics of the development of Xinjiang law in Qing Dynasty. The thesis is divided into three parts: the main body and the conclusion. The introduction mainly includes: the origin of the research, the theme and the frame; the review of the research related to the topic and the significance and value of this paper; the scope of the research, the basic concepts and the explanation of the data. The main part of the thesis is divided into six chapters. The first three chapters of the thesis mainly show the reality of "unity and pluralism" of Xinjiang law in Qing Dynasty from three angles: legal origin, judicial system and grass-roots control. The fourth chapter mainly discusses the integration of government-led laws in Xinjiang in Qing Dynasty. The fifth chapter focuses on the historical origin, political basis and legal basis of the formation and development of "one and multiple" pattern of Xinjiang law in Qing Dynasty. The sixth chapter discusses the practical experience and theoretical value of Xinjiang law in Qing Dynasty. Practical experience is a historical reflection on the legal governance of Xinjiang in the Qing Dynasty. The theoretical value part is the further extension of the theoretical direction of the Qing Dynasty law research in Xinjiang, which is based on the main line of "integration and pluralism". It is to the Chinese legal system from the perspective of Xinjiang law of the Qing Dynasty, which is the meso-level and regional law. Folk law and multi-legal issues such as re-examination and review. The conclusion part is the summary and summary of the basic point of view of the thesis: 1. The law of Xinjiang in Qing Dynasty is the rich connotation of traditional Chinese multi-legal culture. It is also an important part of the law of Qing Dynasty. 2. The law of Xinjiang military administration system in Qing Dynasty is basically the multi-element of the system arrangement and power allocation of nationality, region, religion and culture in one-in-one system. 3. The law of Xinjiang in Qing Dynasty is a pluralistic and heterogeneous internal legal system and operation system, which takes state-made law as the main body. The prominent manifestation is the difference between sharia law and national legislation. 4. In Qing Dynasty, the integration of multi-laws in Xinjiang changed dynamically with the establishment of Xinjiang Province as the boundary. After the establishment of the province, the multi-pattern of plate type has been gradually broken, the process of legal integration has been promoted, and the construction of integration in the sense of culture has begun gradually. 5. Under the same political framework, it is always the direction and trend of Xinjiang law development in Qing Dynasty to take the law-making of the state as the leading factor, take the unity as the value goal, and coordinate each other to form a whole of the laws in Xinjiang in the Qing Dynasty.
【学位授予单位】：中国政法大学
【学位级别】：博士
【学位授予年份】：2011
【分类号】：K249
本文编号：2458108
[Abstract]:The Qing Dynasty inherited and developed the experience since Han and Tang dynasties, and the governance of Xinjiang region was more in-depth and extensive, especially in the aspects of national legislation and legal governance, and its gains and losses in the governance of future generations. Due to the complicated geographical and humanistic factors, after the unification of Xinjiang in Qing Dynasty, the policy of governing according to customs was adopted. The law, religious law and customary law of Xinjiang region coexisted at the same time, and formed a whole and pluralistic pattern of legal system and judicial practice. The coexistence of multi-elements and multi-laws in one became the basic vein and outstanding characteristics of the development of Xinjiang law in Qing Dynasty. The thesis is divided into three parts: the main body and the conclusion. The introduction mainly includes: the origin of the research, the theme and the frame; the review of the research related to the topic and the significance and value of this paper; the scope of the research, the basic concepts and the explanation of the data. The main part of the thesis is divided into six chapters. The first three chapters of the thesis mainly show the reality of "unity and pluralism" of Xinjiang law in Qing Dynasty from three angles: legal origin, judicial system and grass-roots control. The fourth chapter mainly discusses the integration of government-led laws in Xinjiang in Qing Dynasty. The fifth chapter focuses on the historical origin, political basis and legal basis of the formation and development of "one and multiple" pattern of Xinjiang law in Qing Dynasty. The sixth chapter discusses the practical experience and theoretical value of Xinjiang law in Qing Dynasty. Practical experience is a historical reflection on the legal governance of Xinjiang in the Qing Dynasty. The theoretical value part is the further extension of the theoretical direction of the Qing Dynasty law research in Xinjiang, which is based on the main line of "integration and pluralism". It is to the Chinese legal system from the perspective of Xinjiang law of the Qing Dynasty, which is the meso-level and regional law. Folk law and multi-legal issues such as re-examination and review. The conclusion part is the summary and summary of the basic point of view of the thesis: 1. The law of Xinjiang in Qing Dynasty is the rich connotation of traditional Chinese multi-legal culture. It is also an important part of the law of Qing Dynasty. 2. The law of Xinjiang military administration system in Qing Dynasty is basically the multi-element of the system arrangement and power allocation of nationality, region, religion and culture in one-in-one system. 3. The law of Xinjiang in Qing Dynasty is a pluralistic and heterogeneous internal legal system and operation system, which takes state-made law as the main body. The prominent manifestation is the difference between sharia law and national legislation. 4. In Qing Dynasty, the integration of multi-laws in Xinjiang changed dynamically with the establishment of Xinjiang Province as the boundary. After the establishment of the province, the multi-pattern of plate type has been gradually broken, the process of legal integration has been promoted, and the construction of integration in the sense of culture has begun gradually. 5. Under the same political framework, it is always the direction and trend of Xinjiang law development in Qing Dynasty to take the law-making of the state as the leading factor, take the unity as the value goal, and coordinate each other to form a whole of the laws in Xinjiang in the Qing Dynasty.
【学位授予单位】：中国政法大学
【学位级别】：博士
【学位授予年份】：2011
【分类号】：K249
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