从法的“民族精神”看清末法制改革失败之必然性

From the “National Spirit”of Law to the Necessity of the Failure of the Legal Reform in the Late Qing Dynasty

探究一百多年前清末法制改革的失败原因,我们绝不能把清政府本身作为失败的唯一因素。中国近代法制转型之艰难有其本身的必然性,从历史法学派所强调的法的"民族精神"视角来分析,中国传统社会长期以来所形成的风俗、习惯无疑对国人的思想及其行为方式存在巨大影响。由于缺乏把传统因素与外来事物有机结合方面的有效举措,使得清末法制改革在政体、刑法、民法及其司法制度方面都出现了难以实施的尴尬处境而使改革陷于失败。我们说,任何外来事物的引进若要生根发芽,不可避免地会经历一个本土化的过程,将外来事物与本土资源有效结合是改革成功的关键。

To explore the failure of the legal reform in the late Qing Dynasty from one hundred years ago,we can't think that the Qing government is the only reason of this failure.The difficulty of legal institution in modern China has its necessity.From the perspective of historical jurist to analyze that it had been around for a long time of the customs and habits in Chinese traditional society undoubtedly has the big impact on Chinese people.Because of the lack of the measures on the combination of traditional factors and foreign inventions,as a result,the legal reform in the late Qing Dynasty had a difficult situation in the reform of the political system,criminal law,civil law and judicial system,which made the reform fall into failure.We must say that if foreign inventions'introduction wants to be taken root and sprout,it is inevitable to undergo the process of localization,it is the key of the reform on how to combine the foreign inventions with local resource.