中文法学之“义务”源流考论

On the Origin and Development of"Duty"of Law Science in Chinese

表述现代中文法学之“义务”含义的古汉字的著述载体与对应西文名词发生关联互动的情事,最早可追溯到17世纪末。近现代中文法学的“義務”一词源于和制汉语,日本法律学者率先对义务做了较系统的论述,这些论述以梁启超等人为中介影响到中文法学。梁启超论述义务的文章是中文法学引入义务概念的主要标志,也是20世纪中叶之前义务研究成就在东亚的高峰。着眼于法学研究看问题,20世纪上半叶的后三十余年,中文法学对义务的认识水准,没有超越梁启超义务论已经达到的高度,但这一阶段义务观念在中文法学领域得到了广泛普及,义务作为法学基本范畴的学科地位得到了普遍承认。对义务的认识的周延性和深入程度直接影响对权利、权力等权的具体存在形式本身的认识,因而在法学一般理论研究层面关系重大。有必要基于已获得的认知,进一步梳理和总结20世纪中叶到现今的中文法学义务研究之得失,对研究现状做合理评估,有的放矢地改善义务研究。

The relation and interaction between the ancient Chinese words which represented the meaning of"duty"of law science in contemporary Chinese and the corresponding Western term was traced back to the end of the 17th century.The word"duty"of law science in modern and contemporary Chinese was originated from Japanese-style Chinese.Japanese legal scholars took a lead in making a relatively systematical discussion on duty and such discussion imposed impact on law science in Chinese through the introduction by Liang Qichao and others.Liang Qichao’s article on duty is the main symbol of introducing the concept of duty to law science in Chinese,and also the peak of the achievement of duty research in East Asia before the middle of the 20th century.From the perspective of legal research,in the last thirty years of the first half of the 20th century,the understanding of duty of law science in Chinese did not surpass the level of Liang Qichao’s view on duty.But during this period,the concept of duty was widely spread in the field of law science in Chinese,and the discipline status of duty as the basic concept of law science was generally recognized.The comprehensiveness and the depth of understanding of duty directly affects the understanding of the concrete existence form of Quan(in Chinese)per se such as right and power,thus enjoying significance at the level of general academic research.It is necessary to,based on the acquired knowledge,further sort out and summarize the pros and cons of research into duty of law science in Chinese from the mid-20th century to the present and make reasonable evaluation of the current research situation,so as to improve the research on duty in a targeted manner.