中国传统法研究中的几个问题

Several Issues in the Study of the Chinese Traditional Law

一个多世纪以来 ,传统法在中国常常被视为法治的绊脚石而受到责难。这种旷日持久的责难形成了种种偏见。比如在中西法的比较中习惯以西方法的理论、模式为标准来割裂传统法的有机组成 ;在论述传统法内容时局限于刑 ,而基本排斥了最具特色的“礼” ;过分强调法发展的一般规律 ,而忽视了不同文化背景下法所具有的特殊性。因此 ,在批判传统法的同时 ,我们需要反省对传统法的态度、反省研究中所持的标准、反省研究的方法 ,以求更准确。

For over a century, the traditional law has been criticized as an obstacle to the development of the rule of law in China. This long-drawn-out criticism has resulted in various prejudices, such as using western legal theories and models to cut apart the organic components of the Chinese traditional law in the comparative study of the Chinese and Western laws, limiting the discussion of the contents of the Chinese traditional law to the criminal law only and basically excluding from the discussion the 'rites'(Li), which are most representative of the Chinese traditional law, and over emphasizing the universal rules of the development of the law while ignoring the particularities of the law in different cultural backgrounds. Therefore, while criticizing the traditional law, we need to reflect on our attitude towards and the criteria and methodology used in the research of the traditional law so as to have a more accurate and reasonable understanding of the Chinese traditional law.