【作者】 张海斌；

【导师】 何勤华；

【作者基本信息】 华东政法大学 ， 法律史， 2010， 博士

【摘要】 本论文拟在传统与现代的时间维度与国家与社会的空间维度的交叉视野里,考察社会转型时期中国乡村社会自治与法治的状况、结构以及变迁的诸种形态。特别是在现代国家建设的理论框架下,关注乡村社会“公民”的生态与实践,并在法制现代化的宏大叙事之下,关注乡村社会的法治叙事及其可能的走向。本文基本论点是:从传统社会的角度来看,在中国乡村社会的演进史中是存在某种意义上的自治形态的,但这种自治是一种“自然的自治”,乡村社会相对于朝廷乃至现代国家而言,乃是一种漂浮着的遥远的“想象的异邦”,无法进入国家与社会二元格局。这种长期存在的自然形态的乡村自治传统,客观上建构了具有特定时空合理性的乡村权力结构、权威体系和价值形态,为封建帝国政治体制的稳定运作,提供了坚实的政治基础与社会基础。众所周知,在古代中国,国家权力也曾企图进入乡村社会并实现对其的“统治”,但由于财政实力的匮乏与社会动员能力的软弱,更为关键的是由于缺乏进入乡村的动力机制,最终无疾而终或铩羽而归。清末以降,由于内忧外患兼中外交迫,导致“落后就要挨打”,因此,“国家建设”的任务日益迫切。为实现国家的整合,增强对于乡村社会资源的汲取能力,进而实现有效的社会控制,俾以参与日益激烈的国际竞争,导致国家不得不开始重新界定自己的角色与限度,启动其现代化的进程。由于中国传统乡村社会经济形态和生产方式的封闭性,由于乡村场域的权力结构、社会资本形态的独特性以及价值信仰体系的自足性,导致乡村社会难以逻辑地融入现代国家体系,进而实现国家现代化的整体性推进。因此,在“国家建设”与“国家现代化”的双重进程之中,国家与乡村之间的冲突与博弈势所必然,这种冲突与博弈构成了本文写作的历史与社会背景。在当代中国的现代化过程中,法制现代化是一个重要维度。换言之,法律改革彰显的是传统中国向现代社会转变的努力。众所周知,法制现代化是现代性事业的一部分,与国家制度建设和政权权力运作有着密切关联。因之,实现法治是中国现代化实践的一项重要任务。在本文中,笔者将从哈贝马斯的交往行动理论出发,从法律在沟通“系统”与“生活世界”之间的关系角度,来阐述法制现代化在现代社会中的重要地位,并由此探究“送法下乡”中的法制叙事及其合法性问题。在当代中国现代化和国家政权建设的历史场景下,乡村社会的自治与法治建设,已然构成了一种具有内在冲突的话语与行动,需要我们以更宏观的、更超越的立场来审视与调和这一冲突。在本文中,笔者尝试性地引入了“宪政型自治”这一分析性概念,企图从当代中国宪政架构的高度来理解并谋划乡村自治与法治的图景及流变。按照基本的宪法学理论,宪政应当包含三个基本要素,即民主、法治与人权。其中,民主是宪政的基础,法治是宪政的重要条件,人权保障是宪政的目的。因此在当代中国乡村自治的理论图景中,我们必须首先将农民视为国家的“公民”,从保障公民权利的角度来理解与建构关于乡村自治的各种制度与实践。同时,中国乡村的自治对于现代国家来说,政治功能上应该具有某种程度的宪政意味,是抵抗强大的国家权力恣意行使的制度装置,更是一种国家-社会范畴下的法权关系。因此本文语境中的“宪政型自治”兼具有事实与规范的双重性质,乡村社会的自治与法治问题,只有在此框架之下才能获致更为全面的理解。在本文中,笔者提出的“宪政型乡村自治”主要包括以下三个基础性的论域:其一,乡村社会法制秩序的正当性与合法性的问题。换言之,国家如何在乡村社会建立正当化的法律秩序实现其法律治理的问题,进而在现代化国家的知识论证下,考察此种法律秩序背后的价值取向和目标追求与现代宪政理念之间是否存在悖逆与冲突,对此,笔者将从哈贝马斯协商民主理论的角度简析之;其二,乡村社会中的“农民”与“公民”之间的角色界分及其在权利谱系上的反映。也即,在城乡二元的社会结构下,“农民”的权利和权利意识与“公民”的权利和权利意识之间存在何种重合与错舛,从而揭示在权利之平等保护的宪法原则下,“农民”向“公民”角色转型的宪政意蕴;其三,在国家与社会的理论框架下,从宪政的角度研究乡村自治的自治权性质、范围与界限以及形态,并在此基础上考察乡村社会作为一个整全性的“生活世界”与作为国家权力谱系末端的“基层社会”之间在功能与旨趣上的分裂与融合,进而在商谈民主的基础之上探究如何建构一种宪政型的乡村自治问题。更多还原

【Abstract】 This thesis aims to study the state of self-management and rule-of-law in China’s rural areas, as well as it’s numerous constructions and transitions, during this transitional period from an overlapping perspective of time, covering both ancient and contemporary age, and space, in the level of both state and society. The writer lays special attention, within the theoretical framework of state modernization, on the living conditions of the“citizens”in rural areas, and the narrative of rule-of-law in rural society and its possible development under the grand narrative of modernization of legal systems.The basic viewpoint of this thesis is that, in the view of the traditional society, there does exist, in a sense, a self-management during the development of China’s rural society. However, this self-management is a kind of“spontaneous self-management”(which can hardly be identified as self-management according to western classical theories on this subject), in that the rural society, in contrast with the ancient governments and cities, is an“imaginary foreign land”drifting remotely and indistinctly and is excluded by the binary pattern of state and society. Nevertheless, this long-existing tradition of spontaneous self-management in rural areas naturally evolved into a system of power, authority and values with specific reasonableness both in time and space, which undoubtedly provided a substantial political and social foundation for the stable operation of the political system of the feudal empire. Although in ancient China, the state power did try to exercise its“governing”in rural society, it failed due to its lack of financial strength and its inefficient ability of social mobilization, most importantly, its motivating mechanism of reaching into the rural society. Since the Qing Dynasty, facing both domestic and foreign threats and the unavoidable attack resulting from the backwardness, the task of“state building”has been getting increasingly urgent. In order to realize the integration of the state, to improve its ability of absorbing social recourses from rural areas, and to exercise an efficient social control, so as to take part in the increasingly fierce international competition, the government was forced to redefine its role and boundary, and launch a campaign of modernization.Due to the closeness of the social economic patterns and the mode of production in China’s traditional rural areas, and due to the peculiarity of the power structures and the social capital forms, as well as the self-sufficiency of the value and belief systems in the field of rural areas, it is difficult for China’s rural society to be logically integrated into the modern national system, so as to realize the holistic advancement of national modernization. Therefore, along the double process of“state building”and“national modernization”, conflicts and games between the state and the rural areas are inevitable, which forms the very historical and social background in which this thesis is constructed. Meanwhile, along the progress of modernization in contemporary China, the modernization of the legal systems is also a significant dimension. It is reasonable to believe that the legal reform displays an effort to transform our country from a traditional nation into a modernized one, the rule of law is an indispensible part in this enterprise of modernization, which is intimately related to the construction of our national system and the functioning of the political power, and that the realization of rule-of-law is an essential task in China’s practice of modernization. Therefore, to some extent, an inner paradox constituted of rule-of-law and self-management has already been formed within the domain of discourse in this thesis. In this these, the writer is also going to, based on Habermas’s Communicative Action Theory, from the perspective of the function of law in communicating between“system”and“lebensweit”(life-world), demonstrate the crucial part that the law plays in the contemporary society, and furthermore, to study the validity of the narrative of the legal systems in the program of“Sending Law to the Countryside”.In the background of the modernization of contemporary China and the construction of state political power, the self-management and the rule-of-law in rural society have constituted a discourse and action with inner paradox, which demands a broader and superior standpoint in order that, from which, such a paradox be supervised and mediated. For this purpose, the writer, in the end of the thesis, tries to introduce an analytical concept,“Constitutional Self-management”, by which to understand and contrive the prospect and evolution of self-management and rule-of-law in rural areas from a high perspective of China’s contemporary constitutional construction. As is known to all, the value of constitution, according to basic constitutional theories, lies in its value in the assurance of human rights and restriction of power under the rule of law on the democratic basis. Hence, in the prospect of self-management of rural areas in contemporary China, we have to, above all, regard peasants as citizens of the country, and understand and construct various systems on self-management of rural areas from the perspective of the assurance of civil rights. At the same time, self-management in China’s rural areas should acquire, to some extent, a constitutional significance in its political functions, which serves as a systemic mechanism withstanding arbitrary abuse of the mighty state power, and forms a law-and-power relationship within the nation-society domain. Therefore, there is a dual quality considering both facts and regulations within the theoretical framework of Constitutional Self-management, and a brand new understanding of the problem of self-management and rule-of-law in rural areas can be obtained within the same framework.In the context of this thesis, the theory“Constitutional Self-management in Rural Areas”includes mainly the following three basic domains and objectives: firstly, the problem of legitimacy and validity of the legal order in rural society, in other words, how can a nation create a legitimate legal order and realize the rule of law in rural society; what’s more, whether there exists, under the argumentation of knowledge on modernized nation, contradictions or conflicts between the value orientation and purpose of the legal order and constitutional democracy. The writer is going to briefly analyze this problem in the view of legislationism and Habermas’s theories on deliberative democracy. Secondly, the division of the role as“peasants”and the role as“citizens”in rural society, as well as its reflection in the genealogy of rights. That is, what are the overlaps and divergences, under China’s dual social structure of cities and the countryside, between the rights and the rights awareness of“peasants”and that of“citizens”, which leads to an understanding of the constitutional significance of the transition from the role of“peasants”to the role of“citizens”on the constitutional principles of equal rights. Thirdly, to study, from a constitutional perspective, within the framework of the state and the society, and furthermore, the secondary framework of the state and the rural society, the nature, the range, the boundary and the styles of the right to self-management in rural areas; consequently, the fission and fusion, in the field of their functions and objectives, of the“lebensweit”consisting of the holistic rural society and the“primary-level society”situated on the lowest level in the genealogy of state power; and finally the question of how to construct a constitutional self-management in rural areas in the view of constitutionalism.更多还原