刑法的认同:问题、方法及机制——由一个重婚习俗引发的思考

在青海省的回族和撒拉族聚居区,近年来重婚习俗重新抬头,致使《刑法》第258条在该地区无法得到普遍认同。在刑法获得认同的方法上长期以来所坚持的规则论与决断论相结合的思维模式,无法实现刑法与民间规则的有效对话,且易在解决刑法认同问题上制造障碍。从青海省回族和撒拉族聚居区重婚习俗的运行情况来看,引入具体秩序论的思维,通过司法在国家制定法与民间规则之间建立沟通机制,是刑法获得认同的重要途径,同时也表明刑法认同在本质上首先应当是一种文化认同。

Pondering over Issues,Approaches and Mechanism about Recognition of Criminal Law Aroused by the Bigamy Custom

In recent years,the bigamy custom has reemerged in the inhabited areas of Hui ethnic and Sa-la ethnic minorities in Qinghai Province. Accordingly,Article 258 of the Criminal Code fails to be recognized universally in this area which leads to a serious problem about recognition of criminal law. The previously long- insisted mentality of combining the rule - theory and the decision - theory to acquire recognition of criminal law has failed to achieve effective dialogue between criminal law and folk rules,yet rather tends to create ob-stacle to recognition of criminal law. From the perspective of the bigamy custom functioning popular in the a-bove areas,it is of vital importance to introduce theory on specific orders and to establish communication mechanism between statutes and folk rules by judiciaries for recognition of criminal law,which also indicates such recognition is in essence a cultural recognition.