因袭与开新:沈家本“会通改制”论再评

An Innovative Review on Shen Jiaben's Integration Thought

关于中律与西法的关系,修律大臣沈家本认为,中律重经验而西法重学理,二者同出于"情理",据此可以会而通之。沈家本的会通思想深受时代思潮、学术训练和角色期望的影响。修律前期他以经世致用为基础,然而经世致用在通经与致用、中学与西学的关系认知上有着巨大的缺陷,沈氏开始借助比附和化约来弥合,最终使其"不持门户之见"的会通目的未能贯彻。媒介东西法系成为眷属的梦想终因客观不能、主观无力而成为温情历史认知下的一种幻影。

Shenjiaben Western law made them zeit gelst, basis unifying believed that the Sinitic Law was focused on experience, while the was focused on theory, but both of them were based on ＂Qingli＂, which integrate. The academic training of Pragmatism at h cognition, practice integration thought of Shen is greatly influenced by and role expectation. Nevertheless, Shen always kept first period of revison. Because of the great difficult on and also the relationship Shen adopted analogies and simplification to get of Sinitic Law ＆ West Sinitic Law and Wes ern tern Law, Law cohere. Unfortunately, Shen failed to accomplish the integration. Besides, the way of analogies and simplification deviated from Shen＇s ＂no sectarian views＂, which left a huge defect in the revision. Eventually,Shen＇s integration target didn＇t realize due to objective restrictions and he＇s subjective weakness.