【作者】 叶英萍；

【导师】 张晋藩；

【作者基本信息】 中国政法大学 ， 法律史， 2011， 博士

【摘要】 黎族是海南最早的居民,史料记载显示,大约3000年前,黎族先民就从广东、广西以及越南北部地区泛舟渡海先后到达海南岛,成为大规模开发海南岛的人类群体。同其他少数民族一样,在热带海岛封闭的生活环境里,黎族人民以自己特有的习俗习惯维持着族内秩序,当封建统治者将其统治力延伸到海南岛及其黎族地区以后,黎族习惯被国家认可,成为习惯法,并融入中华法系,在黎族地区发挥着仅次于国家法的调整作用。因此,黎族习惯法是中华法制文明的组成部分,对黎族习惯法的挖掘、整理与研究,发现黎族习惯法的内在价值,可以进一步丰富中华法文化的内涵,发展中华法文化。研究黎族习惯法,不仅有助于民族大家庭的团结,而且总结黎族习惯法的发展规律也具有重要的理论意义。黎族习惯法涉及到法学、民族学、人类社会学、历史学等多个学科领域,遵循“从自治秩序到统一法律秩序的变迁”这一研究思路,综合运用法学、民族学、社会学、历史学等多学科的研究方法,通过对黎族习惯法语境下的秩序及其变迁的研究,揭示黎族习惯法的内在发展规律。黎族独特的社会环境为习惯法的形成和发挥实效创造了条件。对自然现象的不解产生了对鬼神的敬畏和禁忌,神灵崇拜和传统禁忌,是黎族习惯法产生的观念基础;原始的生产力水平使黎民的共处与合作成为必然,以血缘和地缘为媒介,形成了家庭、合亩、村、峒各个层次的紧密型的社会组织单位,血缘氏族中的长者主导着黎人的生产、生活和宗教活动。围绕着长老权威,依据最初的禁忌和神灵信仰,黎族人民在生活中创造了稳定的自治性秩序,在这种秩序中习惯法逐渐形成,并使得原有的社会秩序更加稳定。任何法律制度的产生都有一个共同的规律,就是法律制度的产生首先是从婚姻家庭制度开始的。玩隆闺、不落夫家、舅公为大,是黎族婚姻自由、男女平等的婚姻家庭制度的集中体现;合亩共耕、平均分配、家庭消费的合亩制在黎族社会长期存在,黎民的财产以先占和亩内分配的方式取得;在民商事交往中,黎族人通过无偿和无期限的借贷帮助族人度过生活难关,通过以物换物的方式,从汉人处换取自己需要的生活资料和生产资料,刻木为契、结绳记事的契约形式,彰显了黎族人民在民事交往中诚实守信的契约观。在公共秩序方面,宗教禁忌使黎人产生了对神灵的敬畏,进而形成了对公共秩序的遵守义务,插星、不偷不贪、共同劳动与互助,表明了黎人不取非份之财、平等互助的习惯法准则。自治秩序中的黎族习惯法,从本族生命的延续和种族的繁衍需要出发,对个体利益关注较少,其目的是全族的共同秩序,个体的满足是通过群体的满足来实现的。尽管从汉代开始,中央政府不断对海南进行征剿,但在统治策略上仍注意因俗而治,客观上较好地维护了黎族习惯法的传统。但宋之后,中央集权得到了加强,黎族社会的管理制度逐渐被统一化,社会基础发生了变化,促使黎族习惯法传统加速向中央统一的法律秩序方向演变。中央政府任用土官、因俗而治的羁縻政策,一方面保留了部分黎族社会传统的习惯法秩序,另一方面又对不符合统治需要的习惯法进行改造,使之与国家统一法律相一致,中央法律与黎族习惯法共同构成了黎区的法律体系。从宋以降,以血缘为主的村峒逐渐变成了基层行政组织,传统权威者黎头、长老演变成中央授权的地方官吏,财产私有意识加强,规范的书面契约被引入到黎区的土地买卖、租赁、典当和借贷等交易中,婚姻自由、男女平等的婚姻家庭制度受到了封建宗法伦理的冲击。秩序是黎族社会存续的基础,黎族习惯法把社会秩序控制在一定的范围以内,当其确立的秩序受到破坏时,就施以相应的惩罚机制。在黎族习惯法秩序中,一般的民事纠纷,如夫妻矛盾、家庭纠纷、邻里纠纷,甚至是村与村之间的矛盾,均可通过面对面的协商解决,通奸、偷盗、人身伤害等,除给予行为人人身、名誉等惩罚外,还要进行民事赔偿,赔偿的财产除补偿被害人外,其余的由族人共同享用。为维护基本生存需要,黎族习惯法强调财产补偿,重视秩序的恢复。在统一法律秩序下,传统的纠纷解决方式得到了传承与改造,传统权威黎头、峒首仍是习惯法的执行者,处理纠纷的方式仍然以公议、协商为主,为了村峒利益的责任连带与械斗仍时常发生。所不同的是,当土官处理不了时才告之官府,明显愚昧残酷的处罚陋俗被严明限制了,黎族习惯法秩序的维护与恢复机制,在法律融合中得到了改进与完善。在中央政权逐步实现对黎族地区的统治与管理过程中,黎族习惯法实现了与华夏族制定法的融合,这一融合,既是华夏族法制的先进性、包容性和融合性使然,也是黎族自身发展的需要,在中华法系的大家庭里,黎族习惯法得到了发展与进步。团体主义、平等互助、诚实守信、本份主义是黎族习惯法的基本特征,而这也是中华法系的基本特征。重视并自觉遵守公共秩序的习惯法态度,男女平等、婚姻自由、团结互助、诚实守信与本分主义的秩序价值,以心灵恐惧、名誉毁损、财产损失、公开与公正程序、以及通过共享惩罚物的间接警示与教育的秩序维护与恢复方法,等等,是其多年形成的、有助于黎族内部和谐与团结的规范,尽管其中有些带有原始性,但却得到了一体遵行,这是值得我们尊重的,因为,正是绚丽多元的民族法文化构成了一体化的中华法文化。更多还原

【Abstract】 Li was the aboriginal people of Hainan island. According to historical record, ancestors of Li people reached Hainan from provinces of Guangdong, Guangxi and the northern part of Vietnam around three thousand years ago, and their arrival became the first large scale inhabitation of Hainan island by human beings. Same as other minority peoples, Li has been maintaining its social order by obeying to its own customs and conventions in an isolated living environment on a tropical island. After the island had been conquered by the mainland feudal rulers, Li customs have been recognized by the state sovereignty, becoming the customary law and integrated into the Chinese legal family. Li customary law has since played a regulating role second only to the state law. Thus, Li customary law is an integral part of Chinese legal family, and the excavation, collection and study of Li customary law with its inherited value would further enrich the contents of Chinese legal culture and help its growth.Li customary law is concerned with several academic fields such as legal science, ethnology, anthropo-sociology, history, etc. Following a line of thought“a transformation from natural order to a unified legal order”, the author has employed multiple study methodologies of legal science, ethnology, sociology and history, and the study focuses on legal order and its transformation under a discourse of Li customary law in a bid to reveal the innate rule of development of Li customary law.A peculiar social environment of Li people created conditions for the forming and effective functioning of its customary law. Perplexity over natural phenomenon made Li people stand in awe of ghosts and spirits and led to various indigenous taboos that were regarded as ideological foundation of the legal customs. Low productivity in a primitive society made it a natural outcome of people’s co-habitation and cooperation. Bounded by blood and geographical ties, social units like family, He-mu, village, and Dong began to take shape. The senior members in such a social unit usually play a leading role in farming, living and religious activities. A stable autonomous order has been maintained by way of respecting senior authorities, following taboos, and believing in ghosts and spirits. A customary law was rooted in such an order, and has in turn helped to consolidate such a social order.We have found a common starting point of any particular legal rule, which is the marriage and family system. The marriage and family system of Li people was featured by freedom of marriage and gender equality that could be reflected by its singular practices like Wan-Gui-Long, or single girls dating or having sexual relationship with boyfriends in a fixed place near their homes, married women can live in their parents home instead of their husbands’, emphasized respect for the maternal family members, like the brothers of a girl’s mother; in terms of the property system, the Li people practiced preoccupation and He-Mu, or joint farming units, equal distribution among members in the same Mu, and family consumption; in civil and commercial transactions, Li people will help the disadvantaged member in their social group by way of zero-interest loans or loans with no prescribed terms, and they also conducted bartering with Han nationality to trade for living as well as production materials they needed. They have created a primitive form of contract featured by making marks on a wooden object or recording dealings with rope knots, showing their integrity and fiduciary ideas. In terms of maintaining public orders, Li people, bounded by their religious taboos and an awe towards ghosts and spirits, resumed a natural responsibility of keeping public orders, and they also followed a customary code of mutual assistance, no-stealing and no coveting. Li customary law in terms of autonomous order is instinctively followed due to a need of continuation and reproduction of a people, resulting in a lack of attention to individuals whose interests would be fulfilled by way of maintaining the public order of the whole people.The central government had been levying wars against the island since Han Dynasty, but the ruling strategy had been cautiously considered with an eye being paid to the respect for local customs and traditions. After Song Dynasty, with the strengthening of the central regime, social institutions here in Li’s society have been unified, which helped to speed up the transformation of traditional customary law to central uniform legal order based upon new social foundation. Local officers would be chosen by the central government from indigenous power people, and Li customs have been largely kept in place on the one hand, and on the other hand, a reforming of customs that were not in line of the central rule was underway. Li local legal system was a mixture of central ordinances and local customs. After the Song Dynasty, villages and Dongs consisting of Li people from the same ancestor have become administrative units at local level, Li Tou, or the head of the village, together with senior wit in a village became local officers under the authorization of central regime, idea of private property has been strengthened, normative written contract has been introduced to land transaction, leasing, pawning and lending businesses, and the freedom of marriage and gender equality have been faced with attacks by fedudal patriarchal ethnic law.Order was the foundation of continuation of the Li society, and social order regulated by Li’s customary law was put under a certain range, when being breached or obstructed, a punishment mechanism will be working. In Li’s customary legal orders, general civil disputes such as domestic disputes, family disputes, neighboring disputes, even conflicts between villages culd be settled by face-to-face negotiations; adultery, civil damages could be claimed for offenders committing adultery, stealing, personal injury, etc. The peculiar part will be that every member of the village would get a share from the rest of compensations after the victims have got their part. Meeting the need of basic survival, Li customary law emphasized a property compensation and the restoration of orders. Under the central legal order, traditional dispute settlement has been inherited and reformed with Li Tou and Dong Shou still acting as executive officers of law, and the dispute settlement would take a form of public discussion and negotiation. Joint liability and fighting with weapons between social units were commonly seen. A local case would be reported to the government only when it could not be dealt with by local Li officers, and primitive cruel punishment measures have been prohibited by written laws. The safeguarding and restoration mechanism of Li customary law has been improved with integration of law.In the process of reinforcing governance and ruling regime in Li region, the local Li customary law has been integrated with Chinese legal family. Such an integration was a natural outcome of tolerance and assimilation power of Chinese legal cultural, as well as the innate need of development of Li people. Within a big family of Chinese law, Li customary law saw development and improvement. Collectiveness, mutual help, integrity and honesty, being modest and sticking to one’s duty and obligations, those are the basic features of Li customary law, as well as the basic features of Chinese legal family. In addition, the Li customary law featured special ways of keeping and restoring orders, for example, a wide consciousness of obeying public orders, gender equality, marriage freedom, solidarity and mutual assistance, public trials, procedural fairness, respecting for mysterious heavenly powers, common sharing of damages, all of the above would be valuable experiences for today’s legal construction and local social management.更多还原