国家作为“外人”——一个西南山地民族的认同边界及其纠纷调解过程中的国家角色

The State as “Outsiders"——The Role of State during the Identity Boundary and Dispute Resolutionof A Southwest of China Mountain Ethnic

法律的适用有其自身的认同边界,对某一社会进行法律移植时,要么该法律能被普遍接受,若非如此,则面临法律的转型,也意味着将迎来固有文化秩序的原始抵抗。在西南侗人地区,由于受文化秩序和环境因素影响,以国家权威为背景的法律与政府并不能实质性地参与到村落纠纷的调解过程当中,而是被由宗族、姓氏以及"款约"构建起来的层次性认同边界排斥在村民内部生活秩序之外,享受作为"外人"的礼遇。内外有别、亲疏有序成为村民处理与国家关系的文化逻辑。同样,从国家在西南山地民族区域的法律实践进程看来,由于缺乏相应的文化根基,国家通过法制进入村民内部以实现全能性管治的努力遭遇村民日常性的抵抗,注定了该区域的法制实践仍将是一个困难重重的持续性过程。

The application of the law has its identity boundary, and when transplanting the law to a society, or the law can be generally acceptance; otherwise the law should be faced with the transformation, and also means that there will be original resistance of the old culture order. During the survey about the southwest of China mountainous ethnics, the author found that because of the culture order and environmental factors, in the process of dispute resolution, the law and the government with the background of authority of the state cannot Substantially participate in the village dispute resolution process, but is excluded by the clan, surname, and the Dong＇ s kuant which build up the hierarchical identity boundaries of villagers to exclude the internal life order. The state enjoy the courtesy as ＂outsiders＂. The differentiation of inner and outsider, closeness orderly with different social groups had been the cultural logic of villagers to deal with the state - to - state relations. Similarly, due to the lack of appropriate cultural roots, in the view of the process of legal practice from the southwest mountain ethnics, the state has suffered villagers＇ resistance, though the state want to use the legal system entry the internal of the villagers in order to achieve the efforts of the Almighty governance, which means that the legal practice is destined to be a trouble and persistent process.