中国传统法律“脸谱化”叙事反思——基于“法律东方主义”的考察

Reflection on Stereotyped Narratives of Chinese Traditional Law Based on the Investigation of Legal Orientalism

时下对传统法律文化一直存在着一些“脸谱化”描述,如诸法合体、民刑不分、刑法一统,社会与法律绝对停滞,司法行政完全混同,专制之下毫无法制,等等。在黑格尔、韦伯等西方视野中,传统中国更是反法治的代名词。这些描述有一定合理性,但有不少放大与扭曲,不乏现代文明和西方文明对传统中国的偏见与傲慢,是“法律东方主义”的叙事体现。古代君主权力虽然强大,但也会受到某些制约,并非想象中的恣意妄为。古代法律不能局限于律典律令,而是礼典、习惯法、伦常等组成的多元性的礼法体系。除却刑法之外,也存在行政、经济、民事、礼仪等各方面规范。行政与司法并非完全混同,而是“合中有分”,中央一级多由不同部门执掌行政司法两权。绝对停滞论则抹杀了历史上的法律变革,最终让中西文明沦为文明与野蛮的二元对立。传统法律文化的缺陷理应批判,但不能过度扭曲,而应做出实事求是的客观分析,对其制度治理的合理资源应该重视。

Currently,there are some stereotyped narratives of traditional legal culture,such as,all laws are combined in a code,civil and criminal laws,criminal law are integrated,is the only law,there is an absolute stagnation of society and law,judicature is blended with administration and there will be lack of legal system under autocracy.From the perspectives of western scholars such as Hegel and Weber,traditional China was a byword for anti-rule of law.Though partly reasonable,they are exaggerated and distorted descriptions with prejudice and arrogance from modern and western civilizations towards traditional China,which embody the narrative of Legal Orientalism.Despite their considerable power,ancient emperors were subject to certain restrictions,not as arbitrary as imagined.Ancient law was not confined to codes and decrees,but to a pluralistic system of rites,customary law and ethics.In addition to criminal law,there were administrative,economic,civil and ceremonial norms,etc.Administration and judicature were not completely blended,but divided under integration.Different departments at the central level were in charge of these two rights.The statement of absolute stagnation erases legal reforms in history and finally reduces Chinese and Western civilizations to the antithesis of civilization and barbarism.While the defects of traditional legal culture are subject to criticism,the excessive distorting of them is not acceptable.In studying traditional Chinese law,objective analysis based on facts should be conducted and the reasonable resources of its systematic governance should be given due attentions.