论习俗的法源地位及实现路径——以赣南村庄风水纠纷解决为例

On the Legal Status of Folklore and Its Realization——Taking Resolution of Geomantic Dispute in Gannan as an Example

诸多利益尚未纳入法律调整的范畴,与此相关的纠纷无法通过法律的途径寻求救济,在内生秩序式微的背景下,这些纠纷难以得到有效解决,容易引发不稳定的社会问题。本文以赣南村庄风水纠纷为例,通过个案的研究方法,揭示风水纠纷的解决及其后果。风水利益作为一种特殊的民俗习惯被标签为封建迷信,被法律排斥在外,风水纠纷需要转变成法律能够调整的利益纠纷,即便如此,法律仍然难以直面风水利益本身,最终无法有效解决风水纠纷。习俗虽然能够为纠纷解决提供一套是非标准及解决方案,但熟人村庄的社会基础已经大为削弱,习俗作为一种非正式力量在解决纠纷过程中执行力不足。不论是法律还是民间习俗,都无法单方面地为风水纠纷解决提供正义供给,风水纠纷解决存在困境。国家治理可以有效吸纳社会中的既有资源,将习俗作为法律渊源,在认可习俗合法性的同时发挥其在纠纷解决中应有的作用。习俗作为法源成为裁判的依据需要以善良为前提,因此,将民俗纳入善良风俗,实现民俗可作为法源的基础前提成为必要。

The disputes of the benefits which have not been included in the scope of legal adjustment can not seek relief through legal means. In the context of endogenous order,these disputes are difficult to be effectively resolved and easily lead to social stability problems. This paper taking geomantic disputes in Gannan as an example with the case study method,reveals the settlement of geomantic disputes and its consequences. The benefits of geomancy are labeled as feudal superstition as well as a special folklore,which are excluded from the law. The benefits of geomancy are in the absence of legitimacy in the legal discourse,the resulting contradictions and disputes need to be transformed into such as infringement and other legal adjustment interests. But it is difficult to face the benefits of geomancy itself,and ultimately can not effectively resolve disputes. Although folklore can provide a set of non-standard and solution for dispute resolution,the social foundation of village acquaintance weakened,and as an informal force,resulting in insufficient execution. Whether it is law or folklore,can not provide the fair supply for the geomancy dispute unilaterally,the geomancy dispute solution is in the difficult position. National governance can effectively absorb the existing resources in the society,and take folklore as the source of law. It can enhance the legitimacy of folklore and play its due role in dispute resolution. Folklore as a source of law becomes the basis of the referee,which needs to be kind for the premise,therefore,it is necessary to incorporate folklore into good custom and control folklore as a source of law.