恩格斯民族习惯法理论及其在中国史研究中的应用

Engels' Theory of National Customary Law and Its Application in the Study of the Chinese History

恩格斯对民族习惯法有精辟论述,认为一个民族的生产关系等客观条件决定其法律;即使是处于被统治地位的民族,其民族习惯法也将因为经济基础和生产关系的保留而长期保留,直至整个生产组织形式被彻底摧毁或改变。恩格斯的观点对于研究多民族国家的法律史很有借鉴意义。在中华民族多民族统一和融合的进程中,各民族之间在法律文化上也同样发生着碰撞和融合。由于中原汉民族的农耕文明相对先进,进入中原的少数民族往往会在封建化过程中采取汉民族的法律而放弃自己原本基于游牧或渔猎的民族习惯法。这与恩格斯基于欧洲历史的论断相符合。同时应该注意,中国历史有着自身的独特特征:无论少数民族是否处于统治地位,其习惯法总是与中原王朝的制定法先共存,后融合。在此过程中少数民族往往是主动的,这源于中华民族自身的特点,特别是中原文化兼收并蓄的特点。

Engels draws an insightful conclusion on national customary law.He thinks that the law of a nation is determined by the objective conditions such as its production relations.Even if a nation is in a situation of being ruled by another one,its national customary law would be long-termed retained due to the preservation of its economical base and production relations and would not be changed until the entire production organizational form is completely destroyed or altered.Engels' viewpoint is of significant reference to the study of the legal history of a multinational country.With the unity and integration of the Chinese various ethnic groups,their legal cultures are also keeping colliding and integrating.As the Han nationality living in the Central Plains has the relatively advanced agricultural civilization,the other minorities that enter into the Central Plains tend to take the laws of Han nationality and abandon their own national customary law that is based on the custom of nomadic life or fishing and hunting life.This is consistent with Engels' s viewpoint based on the history of Europe.We should also notice that Chinese history has its own unique characteristics:whether a minority is in the position of dominance or not,its customary law always coexists with the statute law of the Central Plains before integration.In this process,the minority always plays the more active role,which is due to the Chinese own characteristics,especially the characteristics of Central Plains culture that it swallows anything and everything.