摘要
近代以前的中国有着自己独特的社会规范体系,我们即使可以宣称这个规范体系中存在着近代意义上的法律,也不得不承认这种"法律"实际上处于边缘的位置。中国的近代法律体系和法学都是自西方移植而来的,起初出于被迫,而后在"现代化"的引诱下变为自愿。这一移植西法的过程至今已有百余年的历史。其间,我们每每发现法律与中国人的社会生活无法契合,总是归因于"学得不像",还需要继续学习和引进地道的西方法律。中国法学也总是停留于介绍西方法律理论或注释舶来的"中国法律"的水平,极少以中国社会为立足点来思考中国人的社会生活中是否需要法律以及需要什么样的法律。
This article aims to define the nature of legal scholarship and its relation to modern social science. The first and second parts of the article are presented at two levels. On the surface, they offer a sociohistorical analysis of the role of legal scholarship in the development of the legal profession. At a deeper level, they identify the ways in which the autonomous and thus closed nature of legal scholarship was legitimatized and secured during the profession-building process. In the third part of the article, the author examines the rise ofmodem social science in the 19th century and its significance for the modern conception of domination, Though legal scholarship has lost its position as a major science of human measure at that time, it retained its autonomy in the professional community. By addressing the differences between the problems which legal scholarship is forced to encounter in Western and Chinese societies, the author concludes by suggesting that Chinese legal scholars must recognize the limits of their field, and employ empirical social scientific methods to base their studies on Chinese local realities.
出处
《北大法律评论》
1998年第1期1-30,共30页
Peking University Law Review