超越“传统与现代”：法律多线现代化

相关研究或明或暗地将“传统与现代”作为民间法与国家法的重要区别。然而,民间法与国家法都是各自以一种进化的方式发展起来的,都有自己的历史和现实,并都在内外因素作用下不断变迁以适应现代社会,都有自己的经验、理性和正义观,都满足一定的社会需要,都有传统性和自己的现代性,都有自身的现代化进程。而且,国家法与民间法从来都是相互影响并由此在一定程度上相互转化和承认,“你中有我,”“我中有你,”交错混杂。将国家法和民间法作现代与传统的区分缺乏事实和理论依据。在法律多元的社会中,法律现代化是民间法与国家法各自在内外因素作用下的多线现代化。我们应当引导民间法的现代化,确保民间法现代化与国家法现代化的协调,确保正义的弘扬和社会的和谐。

Overriding "tradition and modernism" :law modernize on lines

concerned studies distinguish mainly folk law from country law by "tradition and modernism" obviously or dimly.However,folk law and country law has also evolved respectively,also has its own history and reality,also has developed and changed to fix in with modern society because of its own and foreign factor,also has its own experience,reason and justice thought,also satisfies some social need,also has its own tradition and modernity,also has its own modernization.Moreover,folk law and country law have ever interacted,and therefore have sucked and conceded each other to some degree,"I am in you","you are in mine",intercross and interlard.It is wrong to distinguish folk law from country law by "tradition and modernism".Modernization of law means liny modernization of law that folk law and country law modernizes respectively on its line because of its own and foreign factor in dualistic law society.We should modernize folk law,and adjust modernization of folk law to modernization of country law,so that justice and harmony come true.