慈善概念的移植何以未完成：一个政策过程的分析

Unsuccessful Transplant of the Concept of Charity:An Analysis from the Perspective of Policy Process

寻求法律移植与习俗的有机统一无疑是中国法律现代化最为重要的问题。由于缺乏微观政策过程的分析,对这一问题的探讨大多停留在宏观层面。本文从法律现代化和法律多元主义的理论视角出发,以《慈善法》中"慈善"概念的形成为例,探讨了法律移植与习俗如何通过立法体制影响法律的形成。研究发现,习俗通过回应性立法的制度安排以及立法者的双重身份被纳入到决策中。法律移植的慈善概念则通过法律专家与立法者的深度互动产生作用。然而,立法过程中提案与审议的分离以及政治官僚制的决策模式使得形式理性法律的建构面临双重消解。因此,促进立法体制的优化才能实现立法中形式理性与价值理性的有效融合。

In the process of legal modernization,China has always been faced with conflicts between transplanted laws and domestic customs.How to build a legal system that both embodies formal rationality and absorbs Chinese cultural traditions has become a significant theoretical problem in the process of China’s transformation.Due to the lack of research on micro-policy making processes,the discussions on this issue mostly remain at the macro level.Therefore,this article takes the formation of the concept of"charity"in the Charity Law of the People’s Republic of China as an example to explore how legal transplant and domestic customs affect legislation.Weber’s formal rational law and substantive rational law,as well as the concept of legal pluralism are applied as theoretical framework for this study.Through the analysis of the legislative process of defining the concept of "charity",it is found that legislation is influenced by two factors:the legislature needs to response to the public demands to enhance its legitimacy,and the legislators themselves are part of the public.These two factors make the concept of charity in law fully reflect domestic customs.The transplant of the legal concept of charity is mainly achieved through the cooperation between legal experts and legislators.Through such interactions,legislators recognize that incorporating local customs into the legal system undermines the internal logic of the law.Therefore,there is a growing demand in China’s current legislative process to integrate legal transplant with local customs in a more organic manner.However,due to the separation of proposal and deliberation in the legislative process and the decision-making mode of political bureaucracy,the construction of formal rational law faces a double disintegration.Thus,to facilitate better integration of legal transplant and local customs,the legislative system,with the full participation of legal experts,needs to integrate the drafting and deliberation process,and remove the information constraints on the legislative decision makers(non-legislative technocrats).