西法何以未能东鉴——庞德与中国近代的法律改革浅析

Why the Western Laws Were Not Used for Reference in China? -A Brief Analysis of Roscoe Pound and the Legal Reform in Modern China

庞德作为中国近代被政府聘请的最后一位外国法律专家,被南京国民政府视为合适人选有其内在原因。庞德的社会学法学的理论、社会利益学说与国民政府的国家、社会本位论有相似之处庞德在华担任司法部和教育部顾问期间对中国的法制建设及法学教育提出了诸多有见地的建议,但最终收效甚微。笔者认为,除了政局动荡、法制建设缺乏稳定的环境这一因素外,法律文化的不同、宪政运动的失败、司法独立精神的缺乏及社会结构的落后是使其改革建议无法有效实施的更深层次原因。在法制建设蓬勃发展的今天,庞德的改革建议仍有其进步意义,值得我们借鉴。

Roscoe Pound was considered reasonable to be the right person as a foreign expert of law employed by the Nanjing National Government of modern China. Pound's theory on sociology and social benefits had much in common with the nation and the social standard of the National Government. While he was the consultant of the Ministry of Justice and the Ministry of Education, Pound offered much good advice on China s construction of laws and law education as well. But few results came out. Apart from the unrest of political situation and the lack of stable environment for the construction of law, the difference of the culture of law, the failure of the constitutional government, the lack of the independence of administration of justice and the backwardness of the social structure, all together caused his suggestions not in effect. As the construction of laws is now developing vigorously, Pound s suggestions on reform are still of progressive significance.