系统论视野下中国古代的礼与法

中国传统法是礼与法的共同体,中国传统社会是礼与法共同运作的有机体。中国古代礼与法关系问题的讨论,以往的研究视角多采用历史分析法,从礼与法的起源、各自的作用、国家主义的立场等方面予以探讨,这对于明晰两者关系、理解中华法系的精髓和中国传统法文化的基本精神是颇有助益的。本文尝试着将卢曼的法律社会学的系统论导入礼法关系的分析架构中。中国古代社会本身是由礼与法构成的独特社会结构,本文并非指涉礼法关系的内部结构,而是从社会结构这一个外部的视角,以系统论的思路与方法探究两者的关系,以系统功能分化的理论探究中国古代礼与法运作过程中出现了三个方面的悖论,表明在中国古代礼法没有相对的系统分立,而是浑然一体的。

Chinese ancient manners and laws under the systematism theory

Chinese traditional law is mixture of law and manners. Chinese traditional society is an organism of interaction between law and manners. The discussion on their relationship was often made with historical analysis and explored in the point of its sources, functions and nationalist standings. It will be helpful as regard to make their relationship clear and understand the essence of Chinese legal system and basic spirit of Chinese traditional legal literature. This article is to apply Luhmann's systematic theory of legal society to the analytical structure of the relationship between manners and laws. Chinese ancient society itself is a unique social structure constituted by manners and law. This article is to explore their relationship with systematic method in the point of view social structure (which is outside) instead of the relationship between manners and law (which is inside). The article shows that there is no relative systematic separation between Chinese ancient manners and laws but they are a whole.