孟德斯鸠论中国风俗、习惯、伦理与法律之互动——兼及“法律东方主义”视域下的反思

Montesquieu Talked That the Interaction of Chinese Customs,Habits,Ethic and Law——Reflection in Legal Orientalism Perspective

在孟德斯鸠“法的精神”学说中,习俗、伦理与政体、法律问题有紧密关联.孟德斯鸠对中国风俗习惯、伦理道德与法律的融为一体有深刻体察.他深入分析了中国是如何实现这几者的融合,对中国治理模式有较为清醒的判断.孟德斯鸠对此表示了适度赞赏.但他更认为,法律与风俗的混为一体是传统社会的遗留品,中国的这一特点是东方专制主义的典型体现,是专制政体的写照.孟德斯鸠的论断具有一种鲜明的二重性.就其正面意义而言,他对中国礼教治理体系的学术考察较为深入,其对礼教弊端的批判推动了中国的思想革命.而就其消极面而言,他的判断又是一种典型的价值先行,对中国问题完全以近代西方法律模式为范本进行苛责,忽视了西方历史上法律与风俗习惯的分化也是一个漫长的历史进程.孟氏的论断也体现了一种“法律东方主义”的傲慢与偏见,对中国法律文化具有一定的误读.

In the theory of "the spirit of law" in Montesquieu,the customs,the ethics,the polity and the legal issues are closed related. Montesquieu was also deeply involved in the integration of Chinese customs, ethics and law. He deeply analyzed how the Chinese were able to achieve the fusion of these and has a more sober assessment of China’s governance model. Montesquieu duly appreciated this. But the more he thinks,law and custom of mixed as a whole is the legacy of traditional society, the characteristics of China is the typical manifestation of Oriental despotism,as well as the picture of authoritarian regime. Montesquieu’s assertion has a distinct duality. In the positive sense,he has a thorough examination of the system of Chinese etiquette and education, and his criticism of the malpractice of Confucianism has promoted the Chinese thought revolution. And in terms of its negative aspects,his judgment is a typical value first,for the China’s problem, he scarified totally by the model of the western legal system, but he ignored the division of laws and customs in western history is also through a long history. Moutesquieu s thesis also reflects the arrogance and prejudice of legal orientalism which has a certain misreading of Chinese legal culture.