明清时期区域社会中的民事法秩序——以湖北汉川汈汊黄氏的《湖案》为心

Civil Law Norms in Local Societies during the Ming and Qing:A Discussion Centered round Lake Cases Compiled by the Huang Clan at Diaocha, Hanchuan,Hubei Province

明清时期,湖北汉川黄氏宗族拥有汈汊湖水域的大量湖产撕墓槭粑侍?他们与周边众姓进行了旷日持久的争讼,并将相关的诉讼文书、契约等收入族谱中,总名为《湖案》。如果仅从制度的角度对这些材料加以研究,固然会得到一些民事法秩序的规范性内容,却有可能掩盖丰富的经验事实。如果将它们置于区域社会的发展脉络中,在实践的层面进行分析,则可以看到权利的实现与宗族建设、司法审判与民间秩序之间存在着密切而复杂的关系。自然环境、生产方式、基层社会结构与国家制度等因素相互作用,形成了区域社会民事法秩序的具体形态。

In the Ming and Qing dynasties, large areas of water in Diaocha Lake in Hanchuan, Hubei Province belonged to the Huangs, who were involved in lawsuits against the nearby families for the property right of the waters for a long time. They collected the documents, records and contracts of these lawsuits in their family records, under the title of Lake Cases. A reading of these materials merely from the perspective of institutions will obscure the rich corpus of empirical facts, although it may provide some clues to the normative contents of civil law. However, if put in a larger context of local social development and analyzed at the level of practice, it may reveal the complicated and close relationship between the realization of rights and clan building, and between legal justice and spontaneous order. The interaction between the natural environment, production mode, basic social structure and state institutions shaped the specific forms of civil law norms in local societies.