政治秩序演进与家庭法——中国经验及其意义

Evolution of Political Order and Family Law——Experience of China and Its Meaning

本文以"政治秩序结构"为核心概念在中国史境中论述政治秩序演进与家庭法之间的关系。家庭法既具有私法平等、自治的普遍性特点,又是调节着最为"初级"最为私密的关系且伦理性最强的一个部门法,它通过干预人类自生秩序来参与政治秩序结构的建构,从而影响后者的演进,在此过程中,它保持着自身规律性和延续性,以限制和规范、转化着政治秩序的变化,另一方面,政治秩序需要依靠家庭法的这一特点淡化强制建构的色彩、增强自身的合法性认同,因此家庭法成为其主导下的秩序结构失衡时的首要解决方案之一,变迁也有赖于它的平衡与稳定。

This paper stated the relation between evolution of political order and family law in historic context of China with 'structure of political order' as the core concept. Family law is featured by general features of private law like equality and autonomy and it adjusts the most 'primary' intimate relations as a department law with the strongest ethicality. By intervening into spontaneous order of humans, it participates in structuring the structure of political order, thus influencing its evolution. In this process, family law keeps its own rules and continuity to restrict, normalize and transfer changes of political order. On the other hand,political order needs to depend on the feature of family law to weaken the color of mandatory structuring and enhance its own legality approval. Therefore, family law is one of the prior solutions when structure of order under its dominance is imbalanced and changes also rely on its balance and stability.