神·人·法：纠纷解决模式从权威到规则的演进

God,Human and Law:The Evolution of Dispute Resolution from Authority Discretion to Rule of Rules

纠纷解决自古就是人类社会所面对的一项深刻主题。综观人类历史,纠纷解决大抵经历了一个从权威到规则的过程。神明裁判是几乎所有初民社会都曾广泛使用的纠纷解决手段,这也成为最早的纠纷解决的权威审判方式。随着社会的发展和生存经验的不断积累,神明的权威逐渐隐去,而代之以氏族首领这一新的权威,在纠纷解决过程中发挥着重要的作用,也进而成为最早的法官。在纠纷解决过程中所形成的习惯因其被普遍承认而固定下来,成为规则,规则也逐渐限制了权威的自由评断,成为纠纷解决的依据。

Dispute solving has been a profound theme of human society ever since ancient times. A review of human history reveals that dispute resolution has undergone a shift from authority discretion to rule of rules. Divine judgment which was widely used in almost all of the primitive societies represents the earliest authority judgment form in dispute resolution. With the development of human society and the constant accumulation of experiences, the authoritativeness of divine judgment faded out gradually, replaced by a new authority the clan chief who played an important role in dispute resolution and was regarded as the earliest judge. Customs which were universally recognized and well established in the process of dispute settlement were handed down and became rules which have gradually set limits to the free judgment of authorities and have served as the basis for dispute resolution.