基层社会治理秩序的构建——基于明清时期国家法与习惯法互动的视角

Construction of Local Governance Order——From the Perspective of Interaction between State Law and Customary Law in the Ming and Qing Dynasties

中国国家与基层社会如何实现治理秩序的统一性是一个不断发展的话题,对于传统帝制时代的中国和走出帝制之后的中国具有同样重要的意义。明清时期的国家法和习惯法在基层社会秩序的构建中既分工又协作。首先,习惯法是在民间风俗或惯习基础上形成的,其中调整"户婚田土钱债"等日常生活中的"细事"纠纷对于基层社会的治理起到了"润物细无声"的作用。国家法则由国家机构制定和颁布,关注的是"细事"之外的国家政治经济生活的"大事"。其次,国家法与习惯法在基层社会治理中相互协作和融合。国家法不同程度地承认和吸纳习惯法,习惯法也在不断主动地要求"被归纳"到国家法之中,它们在基层社会的治理中形成了"刚柔相济"的局面。将国家法与习惯法融合起来的关键是贯穿在官方和民间诉讼中的统一的"支撑司法的核心价值观"。"司法核心价值观"上的一体化和同构性支撑着地方官和民间审理人在"情"与"法"之间进行"衡平",让法律与基层社会的宗教信仰和礼仪制度交织在一起,使得国家与基层社会整合了起来,促成了国家与社会在基层治理秩序中统一性的实现。这一观察对我国新时期如何通过新的治理结构来缓解和转化一统体制与有效治理的矛盾,重构传统与现代相结合的基层社会治理秩序,实现观念一体化的国家治理超稳定结构颇具启发意义。

How to achieve the unity of governance order between the state and local society is a growing topic. It is important for China in the traditional imperial era and after that. In the Ming and Qing Dynasties, state law and customary law had division and cooperation in the process of the construction of local social order. Firstly, customary law was formed on the basis of folk customs or habitus, adjusting the dispute of 'minor details' in the daily life such as 'household, marriage, farmland, money, debt' and so on. It had played a role of 'moistening things silently' for the governance of local society. State law was formulated and promulgated by government agency, focusing on the 'major events' of the political and economic matters of the state beyond the 'minor details'. Secondly, state law and customary law collaborated and integrated with each other in local social governance. State law recognized and absorbed customary law in varying degrees;customary law was also actively calling for 'being inducted' into state law. The key to the integration of state law with customary law is the unified 'core values of supporting judicature' which run through both official and civil litigation. The integration and homoorganicity of 'judicial core values' support the 'equity' between 'human relationship' and 'law' examined by local officials and civil arbitrators and make the law intertwined with the religious belief and etiquette system in the local society. It promotes the unity of state and society in the governance order at the local level. This observation is very enlightening on how to mitigate and transform the contradiction between the unified system and effective governance through the new governance structure in the new period of China, reconstructing the local governance order combined with the traditional and modern, and realizing the super stable structure of the state governance with conceptual integration.