清末民初律法中国家主权伦理“自我认同”的共识与分歧

Consensus and divergence on self-identification of national sovereignty ethics in the laws of the late Qing Dynasty and the early Republic of China

清末民初的律法改革是在国家突然受到外部势力冲击、脱离原有轨道,进入近代化转型时期的产物。时人急于废除西方在华的领事裁判权,确立了契合国家主权伦理的律法内容,致力于挖掘出共同的民族国家伦理基础,开辟以主权伦理为根基的治外法权回收之路。在律法改革的过程中,出现了两个思想派别:一是法理派,主张仿行西法,建构“变法也变道”的政治国家;二是伦理派,主张坚持礼教风俗,建构“变法不变道”的伦理国家。关于国家主权伦理的共识与分歧体现了立法者的衷肠心声与清末民初的时代风貌,对当时社会的价值反映、价值改造和价值需求均产生了一定程度的影响。

The legal reform in the late Qing Dynasty and early Republic of China was the product of the cataclysm in which China,impacted from the external forces,broke away from the original track and entered a period of modernization.Thinkers of the time who were eager to abolish the consular jurisdiction of the West in China,established the legal system in line with the national sovereignty and committed to digging out the common ethical foundation of the nation-state,opening up a road to the recovery of extraterritorial legal rights based on the sovereign rights.In the process of legal reform,two schools of thought emerged.One was the“legal school”,which advocated imitating Western law and constructing a political nation by changing both laws and paths.Another was the“ethical school”,advocating that the reform should be combined with traditional ethics and constructing a nation by changing only laws.The consensus and divergence on national sovereignty ethics embodied the heartfelt voice of legislators and the scenes of the age of the late Qing Dynasty and the early Republic of China.To some degree,they exerted influence on the value reflection,value transformation and value demand of the society at that time.