中国传统法学实践风格的理论诠释——兼及中国法治实践学派的孕育

Theoretical Interpretation of the Practical Style of the Chinese Traditional Jurisprudence:The Cultivation of China Practical School of Rule of Law

中国传统法学根植于法律实践中,它虽然不构建一种系统化的理论体系,但却具备明确的理论指向和思想旨趣。中国传统法学的理性基础不是科学理性,而是实践理性,因此传统法学不追求客观性的标准答案,而是探求解决问题的合理性路径。这种特质决定了传统法学的实践风格,这种实践面向包含了善的目的性追求与法律实践智慧。中国传统法学乃是当代中国实践法治观与中国法治实践学派生成的思想文化前提。法治是一种行动,通过行动塑造法治,是中国法治实践学派的行动纲领。

Modern academic researches on Chinese traditional jurisprudence mainly focus on its history of thoughts and history of systems, which basically helps people understand many details of the subject, but lacks a philosophical perspective in a deep sense, not speaking of constructing an independent modern Chinese jurisprudence deducted from the traditional one. To better utilize the resources of Chinese traditional jurisprudence and enhance the confidence of modem Chinese theories, it is necessary to interpret the traditional jurisprudence from a new perspective of practical rationality, which will be of great help to the forming of a new practical view on the rule of law. The traditional Chinese jurisprudence finds its roots in legal practice, and it is under the premise of t! - H practtce that the jurisprudential thoughts were born. Like all other traditional thoughts, Chinese traditional jurisprudence does not aim at building a systematic theory, but rather, to solve the problems in reality. Therefore, it is a legal thought based on practical rationality rather than scientific rationality,and it pursues a rational way of problem solution rather than an objective standard answer. The theoretical direction and aim of thoughts of the traditional jurisprudence are mainly found in the Confucian jurisprudence and orthodox jurisprudence. What should be noticed is that ＂practice＂ here does ＂ ＂ ＂ ＂ ＂ practices. not simply refer to actlvmes, because not all ＂activities＂ can be called ＂ ＂ ＂ Only those activities with goodness as their purposes can be called ＂practices,＂ while in China the good purposefulness is based on the Confucian value system favored by the society. The practical style of the Chinese traditional jurisprudence features not only the pursuit of goodness, but also the dimension of practical wisdom, the latter of which is the best quality of the traditional legal practices. The Chinese traditional jurisprudence serves as a cultural premise of modern China practical school of rule of law. China practical school of rule of law opposes designing its development path from the text, but advocates that the rule of law is an action, believing that only through continuous actions can we realize the rule of law in a real sense. The rule of law is just like an open game -- people learn to play the game through practices. To create the rule of law through actions should become the guideline of China practical school of rule of law. At the same time, it should also be the basic way to build the rule of law in modern China. It is an important topic to interpret the Chinese traditional jurisprudence in a modern way, and the theoretical interpretation from the practical philosophical perspective is endless. The research done here is only a small start. People will reach a consensus in theory as they deepen their understanding of this topic. Also, it is of great significance to dig out the resources of the traditional jurisprudence and cultivate the theory confidence among the jurisprudence circle of modern China.