徽州田野调查的个案分析——从“杀猪封山”看习惯的存留与效力

在中国传统的乡土社会里,法律渊源呈现出多元化的特征,除朝廷律令之外,传统习惯曾经是调整人们日常生活和民事行为的重要渊源。近几十年来,随着社会结构和社会性质的根本性转变,中国社会的法律与秩序也发生了深刻的变革。传统习惯在当代中国农村是否还存在?习惯是否与现代国家制定法相冲突?其在农村法治建设中的地位和作用怎样?这些问题都应引起我们法学研究的重视。通过对徽州农村民事习惯调查中的个案分析发现,在当今徽州农村仍然存留着大量的传统习惯,有些习惯甚至发挥着重要的法律效力。在当代中国农村的法治建设中,我们应当承认和重视发挥习惯的法律效力,探究那些“被冷落的真实”,为农村法治建设的发展寻找传统的动力。

An Analysis on a Case of the Field Study in Huizhou:Detecting the Remains of Customs and Their Effectiveness from the Story of "Sealing the Mountain Pass by Killing the Pig"

In the traditional Chinese rural society, the source of law was plural. Besides the courts' rules, traditional customs were important parts of law which regulated the natives' daily life and civil action. During the recent decades, with the fundamental transformation of social structure and social character, the Chinese legal order has been changed profoundly. Do the traditional customs still remain in the modern Chinese countryside? Do they conflict with the positive laws? How do they perform in constructing the rural rule of law? These issues are important to be researched. By analyzing an investigated case concerning the rural civil customs in Huizhou, it is revealed that lots of traditional customs still remain in today' s Huizhou countryside, some of which still actually effects. In the construction of rural rule of law, we should admit and attach importance to the role of traditional customs, explore the neglected truth, and exploit traditional dynamics for the development of law.