从“无讼”到“好讼”:明清时期的法律观念及其司法实践

From wusong to haosong:the concepts of law and the judicial practices in the Ming and Qing Dynasties

明清两代正处于一个社会的变迁时期。若以法律诉讼为视角,社会史层面确乎发生了巨大的转向,亦即从"乡土社会"逐渐向"好讼"社会转变。于是,"无讼"的理想与"好讼"的现实必然产生冲突。其冲突的结果,则使明清两代的学者与官员对"无讼"重新进行理性的思考,认定"无讼"并非是一种无为而治的理想世界,而是通过具体的"听讼"过程而达到司法公正。随之而来的则是"息讼"观念的流行,以及"息供"、"省词讼"一类司法实践行为的普遍化。

The Ming and Qing were the times of social changes.As a view of the judicial proceedings,the societies had taken place a tremendous change,it meant that the xiangtu society was transforming into the haosong society,then it must be happened conflict between the ideals of wusong and the reality of haosong.The result of the conflict meant that the scholars and officials had to do a rational think deeply to the wusong.They thought that the wusong was not an ideal state of govern by noninterference,but it meant a judicial just must to be reached by the process of judicial try.The result of the thought meant that the concept of the xisong was prevalent at that times.