“情理法”在清末的断裂与新生
发布时间：2018-09-19 12:19
【摘要】：中国古代法律中的“情理”的涵义包括事理、天理、人情,其中,出于维护封建统治秩序的需要,经过封建统治者的大力提倡,以儒家“礼”为指导的“天理”在情理中处于核心地位。对“天理”的追求不但贯穿于整个法律领域,而且即使在“情理”内部,也可以压制“事理”和“人情”的要求。客观地说,对“情理”的追求一方面使中国古代法律更容易被当时的人们所理解和接受,另一方面也不可避免地具有其伦常压迫性。 “情理”是理解中国传统法律的基础,在漫长的中国封建社会,无论在立法领域还是司法领域,都体现了对“情理”的执着追求,而这种追求也造就了辉煌灿烂的传统中华法文化,然而,近代以来,以“三纲五常”为指导的传统法律日益显示出其伦常压迫性,与当时的整个上层建筑一起成为导致中国落后的因素。在“庚子之变”的惨痛经历后,封建最高统治者似乎也意识到了这一点,于是在“庚子之变”后的清末新政中,沈家本、伍廷芳等人被委以修律重任。沈家本不但在法学学术方面“会通中西”,而且具有丰富的官场经验,因此几乎是自始至终地领导了整个修律过程。沈氏一方面善于运用传统的情理分析方法解决修律过程中出现的问题,另一方面又潜移默化地引进了大量的西方近代“情理”,力求实现融会贯通,洋为中用。虽然由于保守势力的阻挠而保留了大量的封建残余,但最终在政治大环境的推动下基本完成了近代法律体系的建立。 传统的中华法系在清末修律中解体,中国人在法律领域对“情理”的执着向往却没有变,而是延续到了民国时期乃至新中国建立以后。革命先辈谢觉裁同志早在新民主主义革命时期就对传统“情理法”有着深刻的认识,主持法律工作后曾经在不同的场合多次强调“合情合理,即是好法”。可惜的是谢老关于法的情理基础的论断在当时没有引起足够的重视,以致在建国后的一场场政治运动中,特别是在文化大革命中,既不讲“情”亦不讲“理”,法制被破坏殆尽。传统的力量是不可忽视的,在百年后的今天,对“情理”的追求仍然深深楔人于我们的心灵深处,表现在我们的语言行动中。社会舆论对一起起热点案件的关注和监督对维护法律的实体正义起了积极的促进作用,“和谐社会”理念的提出为“情理”注入了最新鲜的血液。同时,对本民族传统法文化精髓的挖掘也越来越引起人们的重视。“情理法”并没有消逝,需要的只是我们创造性地转化。
[Abstract]:The meaning of "reason" in ancient Chinese law includes reason, nature and human feelings. Among them, due to the need to maintain the feudal ruling order, it has been vigorously advocated by the feudal rulers. "Heaven", guided by Confucian rites, is at the core of reason. The pursuit of "reason" not only runs through the whole field of law, but also suppresses the request of "reason" and "human feeling" even within "reason". Objectively speaking, the pursuit of "reason" makes Chinese ancient law easier to be understood and accepted by people at that time, on the other hand, it is inevitably oppressive. "reason" is the basis of understanding Chinese traditional law. In the long feudal society of China, whether in the field of legislation or in the field of judicature, it embodies the persistent pursuit of "reason". However, since modern times, the traditional law guided by "three Compendium and five Chang" has increasingly shown its oppressive nature. Together with the entire superstructure at that time, it became the cause of China's backwardness. After the bitter experience of "the change of Gengzi", the feudal supreme ruler seemed to realize this point, so in the New deal of late Qing Dynasty, Shen Jiaben, Wu Tingfang and others were entrusted with the important task of revising the law. Shen Jiaben not only "knew Chinese and Western" in law academic field, but also had rich official experience, so he led the whole process of law revision almost from beginning to end. On the one hand, Shen is good at solving the problems in the process of revising the law by using the traditional method of rational analysis, on the other hand, he has introduced a large number of western modern "principles" in a subtle way, in order to realize the integration of knowledge and foreign affairs. Although a large number of feudal remnants were retained due to the obstruction of the conservative forces, the establishment of the modern legal system was basically completed under the impetus of the political environment. The traditional Chinese law system disintegrated in the late Qing Dynasty, but the Chinese people's persistent yearning for "reason" in the legal field did not change, but continued until the period of the Republic of China and even after the establishment of New China. As early as the period of the New Democratic Revolution, Comrade Hsieh Chuo-hsien, the forerunner of the revolution, had a profound understanding of the traditional "law of reason." after presiding over the legal work, he stressed many times on different occasions that "reasonableness is a good law." Unfortunately, Xie Lao's argument on the rational basis of the law did not attract enough attention at that time, so that in the political movement after the founding of the people's Republic of China, especially during the Cultural Revolution, neither "emotion" nor "reason" was emphasized. The rule of law was destroyed. The traditional power can not be ignored. Today, after a hundred years, the pursuit of "reason" is still deeply wedged in our hearts and expressions in our language actions. The concern and supervision of a hot case by public opinion has played an active role in promoting the substantive justice of law, and the idea of "harmonious society" has injected the fresh blood into "reason". At the same time, people pay more and more attention to the quintessence of traditional law culture. The Law of reason is not gone, all we need is a creative transformation.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D929
本文编号：2250104
[Abstract]:The meaning of "reason" in ancient Chinese law includes reason, nature and human feelings. Among them, due to the need to maintain the feudal ruling order, it has been vigorously advocated by the feudal rulers. "Heaven", guided by Confucian rites, is at the core of reason. The pursuit of "reason" not only runs through the whole field of law, but also suppresses the request of "reason" and "human feeling" even within "reason". Objectively speaking, the pursuit of "reason" makes Chinese ancient law easier to be understood and accepted by people at that time, on the other hand, it is inevitably oppressive. "reason" is the basis of understanding Chinese traditional law. In the long feudal society of China, whether in the field of legislation or in the field of judicature, it embodies the persistent pursuit of "reason". However, since modern times, the traditional law guided by "three Compendium and five Chang" has increasingly shown its oppressive nature. Together with the entire superstructure at that time, it became the cause of China's backwardness. After the bitter experience of "the change of Gengzi", the feudal supreme ruler seemed to realize this point, so in the New deal of late Qing Dynasty, Shen Jiaben, Wu Tingfang and others were entrusted with the important task of revising the law. Shen Jiaben not only "knew Chinese and Western" in law academic field, but also had rich official experience, so he led the whole process of law revision almost from beginning to end. On the one hand, Shen is good at solving the problems in the process of revising the law by using the traditional method of rational analysis, on the other hand, he has introduced a large number of western modern "principles" in a subtle way, in order to realize the integration of knowledge and foreign affairs. Although a large number of feudal remnants were retained due to the obstruction of the conservative forces, the establishment of the modern legal system was basically completed under the impetus of the political environment. The traditional Chinese law system disintegrated in the late Qing Dynasty, but the Chinese people's persistent yearning for "reason" in the legal field did not change, but continued until the period of the Republic of China and even after the establishment of New China. As early as the period of the New Democratic Revolution, Comrade Hsieh Chuo-hsien, the forerunner of the revolution, had a profound understanding of the traditional "law of reason." after presiding over the legal work, he stressed many times on different occasions that "reasonableness is a good law." Unfortunately, Xie Lao's argument on the rational basis of the law did not attract enough attention at that time, so that in the political movement after the founding of the people's Republic of China, especially during the Cultural Revolution, neither "emotion" nor "reason" was emphasized. The rule of law was destroyed. The traditional power can not be ignored. Today, after a hundred years, the pursuit of "reason" is still deeply wedged in our hearts and expressions in our language actions. The concern and supervision of a hot case by public opinion has played an active role in promoting the substantive justice of law, and the idea of "harmonious society" has injected the fresh blood into "reason". At the same time, people pay more and more attention to the quintessence of traditional law culture. The Law of reason is not gone, all we need is a creative transformation.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D929
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