法不远人：中国古代如何寻找法的共识——中国古代“法言法语”的借鉴

Lesson from Traditional Chinese “Legal Words and Dictions”

中国古代的“法言法语”与现代社会法律语言的日益专业术语化不同,是术语、俗语、雅语并用。在中国古代,刑律因事关人们的身家性命,又由朝廷统一颁行,语言的表达力求精准,所以专业术语发达,非经特殊的学习与训练难以掌握;乡规民约、家法族规是依据礼的精神而制定的裁决民间“小事”的依据,事关人们日常的切身利益,语言的表达则力求通俗易懂,所以有关民事方面的规范基本以俗语的形式出现;而法理的阐述则依附经学,与礼教密切结合,以雅言雅语表达。值得今人借鉴的是,中国古代的立法与社会密切结合,力求社会各阶层的理解与遵循。与礼教密切结合的俗语、雅语所具有的普及性自不待言,即使以术语表达的刑律,古人也通过“讲读”等各种形式使其尽可能的通俗化,以便于公众接受。法律语言与公众之间的无间隔,法言法语依据受众及功能的不同而多样化并力求易为公众接受,使中国古代社会形成了高度的法的共识,而法律的权威也由此形成。

“Legal words and dictions”are rich and colorful in traditional China. Unlike the increasingly professional terminology of modern legal languages, they are the combination of terminology, colloquialism, and refined language. The expression of traditional Chinese criminal law strived to be accurate, and terminology was well-developed, which is difficult to master without special learning, as it is related to the lives of the people and issued by the imperial government. Village regulations and agreements, domestic discipline and clan rules made based on the spirit of rite were the bases for deciding small civil cases and were related to people's everyday own interests. Their expressions were as easy to understand as possible, so they basically appeared in the form of colloquial expressions. However, jurisprudential interpretations were based on Confucian classics, closely combined with rituals, and expressed in refined words and language. What we should learn from today is that the legislations in traditional China are closely integrated with society and strive for the understanding and compliance of all social strata. It goes without saying that colloquial language and refined language closely combined with ritual and religion have wide popularity. Even though the criminal law is expressed in terms, the ancients also popularized it as much as possible in various ways, such as“explaining and reading”, so that the public could accept it. It means there is no estrangement between legal language and the public, and legal words and language diversified according to different audiences and functions and strived to be easily accepted by the society. The traditional Chinese society had formed a high degree of consensus on law, the value of law was highly unified, and the authority of law was thus formed.