孟德斯鸠中国法律观的洞见与误读——基于法律东方主义的反思

Insights and Misreading of Montesquieu's Views on Chinese Laws:Reflections Based on Legal Orientalism

作为世界著名思想家,孟德斯鸠中国政体观与法律观具有深远影响。孟德斯鸠构建了近代经典的政体类型学,他将政体分为共和政体、君主政体和专制政体三种模式,并探讨了它们各自具有的德性、荣誉和恐怖的精神原则。他判定传统中国是专制政体的典型,其法度构建体现了专制的恐怖精神,并与礼教紧密互动。传统中国有关政体研究基本付之阙如。,氏言说通过梁启超、严复等传入中国后,成为中国批判专制、革命变法的重要理论武器,中国思想界亦开始了有关政体问题的深度研究。但其中国法律观灼见与偏见交集,洞察与误读共有,具有双重性。其误读的原因多样,既有因资料缺失而对中国刑罚的失真观察,也有方法论上的以偏概全,如以中国奸商为例批判中国普遍国民性,更多还出自东西文明比较的文化偏见。孟德斯鸠中国法律观因而成为东方专制主义与法律东方主义的重要源头与范本之一,对此需要理性对待与清醒反思。

As a world famous thinker, Montesquieu＇ s views on Chinese forms of government and laws have had a far-reaching influence. Montesquieu constructs a classic modem typology of forms of government, which are divided into three modes, i.e., republics, monarchies and despotisms respectively supported by principles of virtue, honor and fear. He judges that China is the typical example of despotism and the estab- lishment of laws represents the spirit of fear of despotism, which is closely associated with the feudal ethics. Traditional Chinese researches on the forms of government are rarely seen. After being introduced to China by Liang Qichao, ＂fan Fu and other scholars, Montesquieu＇ s thoughts became an important theoretical weap- on in China to criticize despotism and reform the laws. Chinese circle of thinkers began to conduct in-depth researches on forms of government. However, Montesquieu＇ s views on Chinese laws feature a duality, with both profound views and prejudices as well as insights and misreading. The reasons of misreading are vari- ous, including false observation of Chinese criminal laws due to the lack of documents and over-generaliza- tion in methodology. For instance, he criticizes general Chinese character by citing the examples of unscrupu- lous merchants, which is largely derived from the cultural prejudice based on the contrast of Chinese and western civilizations. As his views on Chinese laws has become one of the sources and models of oriental despotism and legal orientalism, they need to be treated rationally and reflected soberly.