家庭法与民法知识谱系的分立

Schism of Genealogy of Knowledge Between Family Law and Civil Law

作为一种独立的范式,家庭法是被人为创造的。此范式意义上家庭法的生成与民法科学的发展如影随形。民法的科学化从一开始就具有明显的财产法指向,家庭法实际上被排除在外。虽然家庭法的权威性来源经历了从专制的自然伦理秩序到由人权和基本权利所构成的客观价值秩序的转变,但其言说方式的形而上特征依然存在,由此区别于民法科学中那种建立在体系融贯性基础之上的论证。在此过程中,以比例原则为核心的价值体系思维方法被引入家庭法。现代家庭法将其科学性诉求转向了形而下的经验主义,表现出对社会科学的高度依赖。这一伽利略传统的科学化进路与民法所秉持的希腊传统科学化进路存在明显的区分,形成了民法思辨实证主义和家庭法经验实证主义的分立。无论是在形而上还是形而下层面,家庭法都呈现出了明显的开放性特征,与外部知识体系存在高度的牵连。家庭法与民法知识谱系上的分立决定了民法典中财产法与家庭法"法律构造艺术"上的分裂。我国家庭法的知识转型已经初露端倪,但步伐明显慢于民法。

Family law, as an independent paradigm , was invented, rather than naturally formed. In this sense, the creation of family law has been closely connected to the birth and development of the civil law science. The process of scientization of the civil law, aimed at completing a Copernican rev- olution through an imitation of natural science, substantially occurred in the field of patrimonial law. In a sharp contrast with the coherent discourse in civil law, family law keeps its metaphysical charac- teristic in argumentation, though its authoritative source has transformed from an autocratic natural ethics to an objective value system composed of basic rights and human rights. In this process, the thinking mode of this value system, which takes the principle of proportionality as the core, is intro- duced into family law accordingly. Meanwhile, empiric science has gradually satisfied the aspiration of scientism in family law. That is to say, social science theories have overtaken family law＇ s reliance on other sources step by step. Nevertheless, this empiric positivism based on the Galilean tradition is distinguished from the reflective positivism of civil law built on the Grecian tradition. Close relation- ship with outside knowledge systems has become the most significant characteristic of family law. Consequently, it is safe to say that family law is an open system both at the metaphysical level and at the physical level. The schism of legal constructive method between family law and patrimonial law in modern civil code can trace its origins to this separation of knowledge pedigree. In China, various signs indicate that the transformation of family law theories has started, even though its pace is much slower than that of the civil law.