作为方法论的“地方法制”

“Local Legal System”as Methodology

我国法学研究长期以来倾向于总体性的思维方式,导致习惯于自上而下的视角观察研究法律问题,体现了一种本质主义的立场。作为方法论的地方法制,则强调在处理统一与分散、权力与权利、中央与地方、中心与边缘、法治与法制、自上而下与自下而上6组概念的关系中,给予分散、权利、地方、边缘、法制、自下而上等更为积极的关注,从中挖掘法治发展的细节因素。基于这一方法,可以观察到中国40年的法治发展,一直植根于中国的改革开放进程,逐步形成了公权与私权、中央与地方、国家与社会之间分工、合作及博弈关系基础上的规则意识、权利意识与责任意识。这是中国法治发展最显著的成就与最坚实的基础。尽管中央的积极推动对中国法治发展具有关键性作用,但是,决定性的成果几乎都来自于社会成员、社会组织以及相互竞争的地方国家机关的创造性实践。基于此,中国法治发展的未来,或许同样取决于如何保持和发挥地方层面法治实践的积极性。

Law studies in China have been inclined to the overall way of thinking for a long time, leading to a custom that laws are observed and studied from a top-down perspective, which represents a position of essentialism. However, local legal system, as methodology, stresses that more attention should be paid to the latter in the six concepts relations between centralization and decentralization, power and right, central government and local government, central area and marginal area, rule of law and legal system, and from-bottom-to-top way and top-down way, so as to explore the details in the development of rule of law. On account of such approach, it can be observed that China＇s four decades of development of rule of law has rooted in its process of reform and open policy all the time. Besides, based on relations of the distribution, cooperation and game between public right and private right, central government and local government, and state and society, rules awareness, right consciousness and conscientiousness have been gradually formed, which is the most remarkable achievement and the most solid foundation for the development of China＇s rule of law. Although the positive promotion of central government plays the crucial role in the development, critical fruit almost comes from the creative practice of members of society, social organizations and competitive local governmental organs. Therefore, the future of China＇s development of rule of law maybe likewise depend on how to sustain and give play to the zeal in practice in rule of law at the local level.