“民间法消亡论”的内在逻辑及其批判

The Intrinsic Logic of the Argument of "Folk Law Extinction" and Its Criticism

在民间法研究热潮中,质疑民间法及其研究之生命力的"民间法消亡论",实则蕴含着一个合理的内核,即它明确承认民间法被边缘化进而趋于消亡的命运乃是现代性及其意识形态的理性主义的必然结论,因此,"民间法消亡论"的内在逻辑就是现代性及其理性主义的霸权逻辑。其错误在于无视民间法同样是具有自立性的事物并因此构成了实在法的基础,从而以"取消论"替代了"关系论"。为此,在建设和谐法治的进程中,应当力倡理性商谈的进路,努力构造起以实在法为主导、社会规范为基础的复合型的法治秩序。

In the upsurge of folk-law study,there is the view of ＂folk law extinction＂ questioning folk law and the vitality of its study.It should be admitted that this argument has its reasonable core,that is,it realizes that the phasing out and extinction of folk law is the inevitable result of the dominance of modernity and the rationalism associated with it.It follows that the intrinsic logic of the ＂folk law extinction＂ argument is the hegemonic logic of modernity and its rationalism.The argument is faulty because it denies the fact that folk law is self-supporting and serves as a foundation of positive law.Therefore,in the process of building a harmonious society ruled by law,we should make great efforts to advocate rational discussion and build a legal order guided by positive law and based on folk-law.