习惯在我国制定法中制度命运的制度分析——兼与苏力教授商榷

Systematical Analysis on the Fate of the Custom in Chinese Legislation:A Discussion with Su Li

学界往往从文化决定论和"现代化论"两种进路来对习惯难以制度化地进入我国制定法这一问题进行研究。"现代化论"缺乏文化决定论必要的历史眼光和世界性视野,使之既缺乏文化决定论的解构意义,又同文化决定论一样不具有建构意义。"现代化的陷阱",大有向技术制度层面解释推进的必要。站在技术的立场,习惯难以制度化地进入我国制定法是由我国行政主导的法律运行模式使然。这种法律运行模式具有国家问题取向和弹性有余而刚性不足的特征,形成的是一种单向度的自上而下的"沟通"机制,不具有让社会下层和社会上层、习惯与国家制定法进行制度性联系和双向度沟通互动的功能。这种制度性障碍,造成了习惯难以制度化地进入我国制定法之中,并使我国的制定法在制度和观念层面有一种结构性缺陷:只有公法而缺乏私法,只是一种"公法文化",单纯的一种名副其实的"国家法";只能产生律学而不可能出现西方意义上的法学。这些制度性影响,最终使中国社会难以走上法治之路。

There are two explanations on why it is hard for custom to get into Chinese legislated law in academe, which are culture -dominated view and modernization -dominated view. Modernization -dominated view is not as good as culture- dominated view in historical and word -wide sight. As a result, it lacks the structural meaning which exists in culture - dominated view. Besides, both of them are lack of constructive meaning. It is very necessary to give a further explanation to the system of technique so as to get out of the trap of culture - dominated view and modernization - dominated view. In the light of the technique, it is an inevitable result of Chinese administration - led mode of legal operation that custom can hardly penetrate into the legislated law. This kind of law mode of operation focuses on the nation instead of the rules. It is flexible enough but lack of rigidness. It fails to provide the systematical relation and communication between different classes as well as between habit and nation. Instead, it forms the unilateralism that communication only exists within higher or lower class. Because of its systematical obstacle, custom can hardly be integrated into the legislated law and there is systematical shortcoming of nation - legislated law in system and concept - it is only a public law instead of a private law. That is to mean it is merely a culture of public law and a real national law. What＇ s more, it will bring in Chinese disciplines rather the western legislation. China will ultimately fail to become the country with a legal system under those systematical influences.