“软法”定义:从传统的“礼法合治”中寻求法的共识

Defining the “Soft Law”: Seeking Consensus of Law from the Tradition of “Rule by Rite and Law”

"软法亦法"观点的提出与研究,为我们分析古代社会的"礼法合治"提供了新的视角,同时也为现实法治在发展中更好地借鉴中国古人的经验与智慧,寻求古今相通,甚至中西相通的"法"之共识提供了新的路径。中国古代社会由"礼治"而"法治"而"礼法合治"的发展,证明了软法的存在以及软法在法律体系中不可或缺的作用。历史的经验告诉我们,自下而上形成并具有社会导向的软法,不仅是法治发展中的有机组成部分,而且更是法治主流价值观形成及法治共识形成的关键所在。

Proposing and researching on the viewpoint of ＂soft law is law＂ will provide us a new perspective for analyzing ＂rule by rite and law＂ of ancient China and help us use the experience and wisdom for refer- ence from our predecessors. Additionally,it also offers us a new path for finding the basic consensus on the le- gal concept not only between ancient and modern China but also between the Orient and the Occident. The so- cial governance of the ancient Chinese society embraced ＂rule by rite＂ at the very beginning,then evolved to the ＂rule by law＂, and eventually combined them together. These developments strongly prove the existence of the soft law and its indispensable role in Chinese legal system. History tells us that the soft law, coming into ex- istence from the bottom up, is society - oriented,which consists of organic part of the growth of the rule of law, as well as a critical portion in the formation of mainstream value and consensus of the rule of law.