法的多重性与乱伦禁忌的起源

Multiplicity of Law and the Origin of Incest Taboo

乱伦禁忌是人类一切制度、道德和法律的起点,人类学在其过去全部学术史上都一直希望对乱伦禁忌的起源问题有更加清晰的认识。既有的研究可以分成两类,麦克伦南、泰勒和列维-施特劳斯认为交换的需求是促成伦乱禁忌的关键动力,而涂尔干、弗洛伊德和基拉尔则认为家内对原生女性的排斥才是问题的根本。本文在对过往关键文献的梳理和批判的基础上提出,部落公法和家庭私法的对张关系使得一部落内的全部原生女性都要进入普遍交换,由此使得部落在掌握婚姻法则的基础上取得对部落人口的所有权。在此基础上,本文进一步反思了以罗马法的保有权与交换权的对反关系为基础的亲属制度研究,指出婚姻是基于公法制度的,而继嗣是基于私法制度的,两者的对反关系既是乱伦禁忌的来源,同时也是人类社会的普遍特征。

Incest taboo is the starting point of all human systems, morals and laws. Throughout its past academic history, anthropology has always intended to have a much more clarified understanding of the origin of incest taboo. Existing research could be divided into two categories, McLennan, Taylor and Levi-Strauss believe that the demand for exchange is the key impetus for the taboo, while Durkheim, Freud and René Girard believe that the domestic exclusion of native women is the root of the problem. Based on reviewing and criticizing the past key literature, this paper proposes that the relationship between tribal public law and family private law enables all the native women in a tribe to enter the universal exchange, thus, the tribe acquired the ownership of the tribal population on the basis of mastering the marriage law. On this basis, this paper further reflects on the kinship system based on the relationship between ownership and exchange rights in Roman law, and points out that marriage is based on public law system, and the successor is based on private law system. The contradictory relationship between the two is not only the source of incest taboo, but also the universal feature of human society.