外援型比较法的四重移植逻辑

The Four Transplant Logic of Foreign-aid Comparative Law

作为当代比较法研究的前沿领域,外援型比较法是一门立足于对外法律援助实践、旨在通过法律移植促进受援国法律改革的应用型研究。在移植立场上,这一课题主张进化主义、技术主义和教化主义三种乐观的法律移植观,并推动批发型、零售型、定制型和排名型的法律移植方案。在移植对象上,这一课题采用以制度、机构和文化为主干的法律系统论以及立法、执法和司法动态运作的国家法律多元主义。在移植动机上,这一课题重点考察成本、压力、营商和声望等动因对法律移植的影响。在移植标准上,这一课题对待法律移植效果的判断标准转向维护移植国利益的内部标准以及注重被移植法律社会语境的内化标准。外援型比较法能够凸显比较法研究的实践品格,但其包容品格仍需被审慎看待。

Since the 1990s,due to the inherent limitations of normative comparison,the lack of value-free functional comparison,and the excessive deconstruction of cultural comparison,modern comparative law has fallen into an academic recession.Criticized for being overly instrumental,utilitarian and fragmented,the comparative legal community has attached more importance to comparative methods than to comparative principles.In the 21st Century,contemporary comparative law has shown substantive changes in research methods,academic purports,discipline orientations,research modals,and leading topics.As a representative frontier field of contemporary comparative law,foreign-aid comparative law rose and fell in the 1960s and 1970s,revived in the 1990s,and is thriving in the contemporary era.By taking an empirical analysis based on the core concept of “legal transplant”,the academic landscape of today's foreign-aid comparative law can be vividly shown.In terms of the transplant positions,traditional comparative legal scholars tend to hold affirmative,negative,and skeptic attitudes towards legal transplant.In comparison,the optimistic attitudes of foreign-aid comparative legal scholars towards legal transplant can be divided into three positions,including modernization-oriented legal evolution,means-oriented legal instrumentalization,and culture-led legal enlightenment,thus leading to wholesale,retail,customized,and ranking legal transplant strategies respectively.In terms of transplant objects,foreign-aid comparative legal scholars generally prefer to adopt the system theory of law and manage to introduce quantitative legal description on the basis of qualitative legal interpretation.Under the guidance of national legal pluralism,the transplant objects of foreign-aid comparative law mainly include the transplant of legal rules at the substantive and procedural levels,the transplant of legal institutions at the implementation level,and the transplant of legal culture by means of profession-oriented legal education and training.In terms of transplant motivations,foreign-aid comparative legal scholars mostly hold a utilitarian mentality of legal transplant,that is,a self-seclusion strategy of legal development will deprive a country of the opportunity for legal modernization.No matter what type of legal transplant strategy is to be adopted,factors such as efficiency,pressure,investment,and reputation must be taken into consideration.In practice,the transplant motivations are diverse and complex.In terms of transplant standards,foreign-aid comparative legal scholars are gradually concerned about developing internal standards for legal transplant to safeguard the interests of transplant countries from the perspectives of “national domestic needs” and “people's interests first”,thus avoiding legal colonialism inherent in external standards.At the same time,foreign-aid comparative legal scholars also proceed to put a premium on the social context and demand side of legal transplant by adopting a participant's perspective.In a nutshell,foreign-aid comparative law is a scholarly field based on rich practice of legal assistance and a countermeasures study strongly driven by the legal assistance industry.Nevertheless,its outstanding practical character cannot guarantee that it can truly establish inclusive comparative principles of law in line with the interests of recipient countries.This article has four intellectual innovations:first,situating the study of comparative law in the contemporary scholarly context based on the modern comparative legal tradition,thus revealing one of the most representative academic branches of the contemporary comparative law from the perspective of international legal assistance.Second,fleshing out the conception of legal transplant by integrating institutional export,cultural infiltration,and capacity building together,thus taking reform-oriented legal transplant as the main thread running through the paper.Third,systematically unfolding the scholarly evolution of the foreign-aid comparative law from four perspectives,including transplant positions,transplant objects,transplant motivations,and transplant standards.Fourth,envisioning the academic character of the foreign-aid comparative law,with a special focus on its internal tension between practical character and inclusive character.