“从俗”与“从推”:从施剑翘案看中西法文化冲突

"From Custom" and "Crom Analogizing" :On the Cultural Conflict between Western and China and Its Causes from the Perspective of Shi Jianqiao's Case

虽然中国传统法律至民国法律移植之后就饱受批评,而实际上对中西法文化之间的冲突界定及成因,却没有充分的分析。以施剑翘案为切入点,从内容与形式上两种冲突看,一方面,"法从俗",传统法的"情理"即以血缘习俗为本质主导、伦理道德为表象辅助的内容来源;另一方面,"法从推",追求直接正义并从"人情"至"天理"的"推"的形式。以社会结构家庭化的特殊性来看冲突的原因,"推"的社会化与"人"的制度化,解释了形式与内容上差异之原因,并由形式推导至内容,将内容与形式相贯通。

Although Chinese traditional law has been criticized since the transplantation of the law of the Republic of China,in fact,the definition and cause of conflict between Chinese and Western legal cultures have not been fully analyzed.From Shi Jianqiao case as the breakthrough point,in the content and form of two conflicts.On the one hand,"law follows custom",the"reason"of traditional law is based on blood custom as the essence,ethics as the auxiliary content source;on the other hand,"law from analogizing",The pursuit of direct justice and the form of"analogizie"from"human"to"divine".On the basis of the particularity of social structure,the reason of conflict,the socialization of"analogizie"and the institutionalization of"human",the explanation is given.The reason of the difference between form and content is given,and the content is deduced from form to content,and the content is connected with form.