当眼里掉进了睫毛——从“南京虐童案”看法律干预家事纠纷

When Eyelashes Fall into Eyes——An Analysis on Legal Intervention in Family Disputes via the Case of Child Abuse in Nanjing

通过对"南京虐童案"的细致分析,本文力图表明,以自由主义和个体主义为基础的现代工商业社会的法律在对家事领域进行规制时,如果不能充分理解该领域中父母同孩子以及夫与妻之间关系特性,就无法做到法律介入的明智、有效和可持续,法治意识形态的"裸奔"亦无法避免。相反,历史中国"父慈子孝"这类的软法规范在对家事领域进行调整时,能够与"时"俱进,实现各方主体的激励兼容,从而使得规范自身能够实现自我执行,达致一种"无需[制定]法律的秩序"。正是在这一意义上,软法比硬法更神圣和坚强。

Through deliberately analyzing the case of "Child Abused in Nanjing", this article concludes that when the law in modern commercial and industrial society based on liberalism and individualism regulates families, it is impossible to achieve sensible, efficient and sustainable legal intervention, and it is inevitable that the ideology of rule of law will become unrooted trees simultaneously, without full comprehension of the characters of relationships between parents and children, husbands and wives in this field. Conversely, when some kinds of soft law regulation such as "to be a benevolent father and an obeying child" regulated family field in historical china, the regulation is able to advance with the time and to achieve compatibility among different subjects through stimulation. In this case, regulation is able to self-execute and to build up an order without statute law. In this sense, soft law is holier and stronger than hard law.