乡规民约与村治:研究范式的综述与反思

On Rural Regulation and Rural Governance——the Research Paradigm Review and Reflection

中国乡村共同体残存而社会未立的格局使自上而下的法治国建设遭遇落地难题。乡村自治范式混淆"共同体"与"社会"的团结性,共同体以压制法而社会以恢复法为自治基础,共同体自治掣肘社会自治的形成。法治国以社会自治为基础,以乡民自治排斥国家法,不利于乡村从"共同体性"到"社会性"的转型。"官督民治"较乡民自治主张更贴近中国经验,为国家法与乡规民约合作之基础。乡规民约研究的"个性化"范式基于文化自觉或实践理性,注意政治疆域内的地理差异和民族多元,主张国家法的统一理性化秩序应与地方生活经验理性化有更多亲和;但该范式缺乏对个性化乡规民约普遍化和通则化以通向统一法秩序的努力。行动中的法范式关注乡治中有效而便捷的手段,挖掘乡规民约在维风导俗、治安与群防、社仓与资源保护等方面作用;但该范式只关注乡规民约的某一方面,忽视了杨开道的"乡治的整个性"问题。

The fragmented community and incomplete establishment of society structure has prevented the legal state construction in rural China. The self-governing paradigm mixes the community solidarity and social solidarity,the self-governance of community based on pressing law while society based on recovery law. The strengthened self-governance will prevent the formulation of social self-governance. The construction of legal state based on social self-governance,preventing the entry of state laws to the village under the theory of self-governance will play a negative role to China＇s transformation from community to society. Supervision by state and management by villagers is more close to China＇s governing practice,which the basis of corporation of state law and rural regulations.Personalization paradigm argues that the unity and rationalized order pursuing by state should absorb more local living rationality. Personalization paradigm argues that the unity and rationalized order pursuing by state should absorb more daily living rationality by focusing on the geographic difference and nationality diversity. The problem of this paradigm is it lacks the effective method of induction to make rural regulations more generalization. The paradigm of law in action pays attention to the effective and convenient methods in rural governance. Rural regulations has important role in formulation of good customs,social security,rural economic corporation and resources protection,etc. The problem of this paradigm lacks systematic conformity of rural regulation and ignores the problem of holistic governance of China＇s village which pointed out by Kaidao Yang.