凉山彝族习惯法的历史流变

【作者】 严文强；

【导师】 陈金全；

【作者基本信息】 西南政法大学 ， 法律史， 2008， 博士

【摘要】 凉山彝族的文字长期被宗教祭师垄断,用于抄写经书,该社会可以被认为是无文字社会,其习惯法是不成文法。历史上,凉山彝区与外界联系较少,中国历代王朝对该地区从未有效行使管辖权,有关凉山彝族的文献记载极少,而且不可靠。由于上述原因,凉山彝族习惯法的以往历史,已难考究。学者的研究只能收集和整理规范,但仅研究抽象的规范,不能获得习惯法的真实情况,“若无案例,哪来法规”,凉山彝族习惯法特别强调案例。学者们开始收集和整理案例,案例代表社会的具体事实,验证规范的实际运行,案例法使凉山彝族习惯法的研究更上一层楼。不过,案例和规范不能截然两分,凉山彝人既着重案例,又重视规范,“祖宗的规矩”长存于彝人心中,体现在彝人行动中。单独描述规范或案例,只能获得习惯法在某一时期的状况。如此研究的习惯法是非历史性的、静止的制度,但任何制度都不是处于时间之外,而永远在历史中延续和变迁。本文考察延续和变迁中的凉山彝族习惯法,希望使研究再上一层楼。二十世纪八十年代以来,法人类学研究实现学术转向,特别重视习惯法的“历史与权力”因素。本文视习惯法为延续的制度和变迁的体系,置之于历史进程和社会巨变背景下研究。论文先分析旧凉山时期的“人命案”和“婚姻案”,探讨习惯法规范和习惯法的实际运行,习惯法与社会、文化、权力等因素之间的关系。论文接着回顾上世纪中叶发生在彝区的历史事件和权力关系的巨变,分析其对习惯法的深刻影响。论文又考察目前的“人命案”和“婚姻案”,并与旧凉山时期的同类型案例纵向比较,研究习惯法的流变。最后,论文总结习惯法的传承与变革,并对其发展作出前瞻。每章主要内容:第一章,绪论。文章先提出研究目的、问题意识,然后回顾以往的研究并作出检讨,再介绍本研究的理论、方法、材料和概念等。第二章,凉山彝族概况。文章主要介绍凉山彝族的地理、经济、历史和宗教情况。第三章,旧凉山时期的彝族习惯法(上)。本章以“人命案”为例,研究旧凉山时期习惯法的规范与运行。文章提出,凉山彝族习惯法是家支习惯法。习惯法对“家支内人命案”和“家支外人命案"的处理判然有别。彝族习惯法严厉惩处杀害家支成员的凶手,凶手必须抵命。习惯法在解决家支外人命案时,既要考虑有关规范,又要考虑规范外的因素。由于家支“力学”关系的存在,受害者需要强大的家支实力作后盾,才能得到公正赔偿。习惯法又有“超越家支主义”特征,其约束机制,如调解人的产生方式和评价标准、社会舆论、宗教约束等,保证习惯法规范在绝大多数情况下得到公正执行。文章认为,凉山彝族习惯法又是等级习惯法。对当事人等级不同的人命案,习惯法的解决方式也不相同,家支“力学”关系同样影响案件的处理。等级低的白彝杀害等级高的黑彝,一律被视为最严重的黑案,按“一黑彝抵四白彝”的规范处理。该规范在实际运行中,又有一定的弹性和幅度,具体处理与白彝凶手或其主子的家支势力有关。习惯法规定,黑彝杀死白彝,根据肇事者责任大小,确定赔偿命价。该规范的执行也与白彝死者家支力量有关。占强势地位的黑彝利用习惯法保障各种特权,相对弱势的白彝也会利用习惯法,影响案件的处理,保护家支成员。第四章,旧凉山时期的彝族习惯法(下)。本章研究旧凉山时期的彝族婚姻习惯法,包括婚姻制度、对违反者的处理、婚姻纠纷的解决等。文章提出,等级内婚制度是婚姻习惯法最重要的内容。没有统一政权的旧凉山彝族社会,黑彝依靠家支统治,以血缘为维护社会地位、政治权力的工具,坚决执行等级内婚制度,决不允许黑彝与白彝或更低等级的人婚配,违反者受到被处死的严厉惩罚。等级内婚制度还体现在,同一等级内不同等第之间也不能通婚,但这种限制,可以被强大的经济实力所打破。文章还提出,家支外婚是家支建立联盟,增强实力的机制,它被视为“祖先定的天理”,得到严格执行,违反者受到习惯法的严厉惩罚,由家支处死。由于涉及家支名誉,凉山彝族婚姻习惯法视拐妻案为黑案,严厉处罚拐妻者。习惯法的处理或惩罚,受双方家支力量对比关系的影响。第五章,凉山彝族习惯法的蛰伏。本章指出,上世纪中叶,发生在凉山的历史事件及权力关系的变迁,导致习惯法的巨变。民主改革废除等级制度,建立和完善基层政权,削弱家支制度。民改后,国家权力试图全面渗入彝族基层,家支、习惯法等传统制度、权威被视为奴隶主统治的工具,屡屡遭到批判。凉山彝族习惯法不得不进入蛰伏状态,激进政策使彝人产生反感和厌恶,他们继续认同家支及习惯法,暗中利用习惯法调处纠纷。国家以政治运动的方式,无视、抛弃、摧残传统文化制度,试图建构现代社会的努力,没有取得成功。第六章,凉山彝族习惯法的复兴与调适(上)。本章分析目前的“人命案”,并与第三章旧凉山时期的“人命案”纵向比较,探讨习惯法受历史与权力影响的方式、程度和表现。就有关人命案的内容而言,习惯法发生剧烈变革,并体现在权威、收案范围、内容、具体处理、执行机制等各方面。当出现与国家法规定一致的人命案时,国家法直接行使管辖权,习惯法只能进行民间调解。国家法不认为是犯罪,不直接追究的案件,当事人依据习惯法解决。习惯法处理这类案件时,同样受国家法的间接影响。家支已不能象旧凉山时期一样,迫使家支内人命案的凶手抵命,只能调解赔偿命金。大部分家支外人命案同样伴随死者家支的打砸抢行为,其规模、过程、组织、影响等,与旧凉山时期相比,已有很大变化。习惯法解决家支外人命案时,仍会考虑家支“力学”关系,调解中利益均衡略偏向于较强方。由于受政府和国家法的干预,习惯法在处理黑彝杀白彝,或白彝杀黑彝命案时,赔偿已趋于平等。第七章,凉山彝族习惯法的复兴与调适(下)。本章分析目前的“婚姻案”,并与旧凉山“婚姻案”纵向比较,考察习惯法的变迁。人们的等级观念仍很强烈,等级内婚制度得到严格执行,黑彝和白彝及以下等级的婚姻被严厉禁止,违反者被开除家支,相同等级内部不同等第之间的通婚也受到家支干预。上述情况的出现,除历史原因外,还与政府执行阶级至上的政策有关。民改时,划分阶级成分的结果与原来等级保持对应关系,因此,阶级斗争变成等级斗争,阶级觉悟变成等级觉悟。政府又在各种政治经济政策中,过分强调阶级话语,对黑白彝明显区分,使等级观念、等级界限没有消减,反而得到保持和强化。政府在婚姻改革中,劝止白彝与黑彝结婚,支持已结婚的白彝与黑彝离婚。政府提倡的阶级血统论与凉山彝族传统社会的等级血统论不谋而合。政府的目的是打破等级内婚,但采取阶级血统论的手段,反而强化等级内婚。习惯法规定的其它所有婚姻制度,如包办婚姻、身价钱、离婚、姑舅表婚等制度,在婚姻改革中被政府全面批判和禁止,文章比较目前婚姻案例与旧凉山的同类案例后,得出结论认为,激进的婚改运动,以失败告终,被批判和打倒的制度,没有消失,其延续、发展与政府期望达到的目标,相差甚远。不过,由于国家法的客观存在,政府宣传、灌输新思想观念的努力,改革开放、市场经济的影响,习惯法的婚姻制度也已发生变迁。第八章,总结与讨论。凉山彝族习惯法实质内容的变迁,不能掩盖其程序、形式、概念仍被延续的事实。本章在总结全文、比较习惯法与国家法的基础上认为,习惯法仍为人们广泛需要和信仰的原因在于:家支、宗教思想、纠纷处理者的权威、语言和知识、解决纠纷的成本、解决纠纷的程序与结果等。文章分析习惯法遭遇的各种挑战,认为习惯法自身已出现混乱、矛盾和断裂,需要合理引导。文章最后提出,习惯法的发展趋势,或凉山彝区的法治路径,是一种开放的“本土论”,即实现习惯法与国家法的合作互补:习惯法可以填补国家立法的空缺,被国家立法吸收,还可以与国家司法合作,共同演奏彝区的“法治交响曲”。本文力图在研究理论和方法上实现创新,通过同类案例的纵横比较,在历史进程中,探讨凉山彝族习惯法的流变。笔者将规范和案例,静态和动态结合,既重视习惯法的制度、内容、执行机制、实际运行,又关注人们的法律观念、法律意识和策略选择,不仅分析习惯法的变化,而且研究习惯法的延续,希望获得凉山彝族习惯法的真实图景,但因学力有限,文中有许多不足,尚需努力改正、提高。更多还原

【Abstract】 Most researchers on minority law pay much attention on the rules, which are the products of many generations, and which still influence minority people’s life. They are referred to by the local people when asked . However, only abstract rules can never be sufficient to have the full picture of minority laws. The recent researches collect cases, which is a step further in the study of minority laws. Cases tell the true facts of minority legal life and case study is the efficient way to research the laws of the minority areas where unwritten laws are adopted. But cases only represent the legal operation at one period of time, what about the law before or after this? Laws can not be studied as the static, cultural institution. Besides, the rules can not be neglected.The author does this research with the consideration of both rules and cases, he treats the law as the transforming system and research it within the history. At the same time, the political, economical as well as power relation is stressed in the dissertation.The first chapter deals with the theory and the method of this research. The second part of this dissertation tells the general information about Liangshan Yi, which is the geographical, economical, historical and religious background of Yi minority law.In the third and forth part, the author analyzes the operation of Yi law at the period of Old Liangshan Area, the time before Communist Party Government. Through case study, the dissertation proposes that Yi law at this period was the only law and had the supreme authority, laid upon the clan organization called Jiaz. It handled the homicide cases differently according to the relationship between the murderer and the murdered. That means if the murder was committed inside the clan, then the killer would be punished seriously according to the Yi law. He would be forced to kill himself without others’ interference. The Yi law ruled that if any member of the clan killed him,then the latter would violate the norm, which stated that no one could take away the life of any other member. If the killer ran away, then the clan would send family members to catch him, and would expel him from the clan if they failed.If the the murder was committed between different families, then the penalty would be different according to the power of the families. It was said that when the powers of the victim and the killer ’s clans were equal, the rule of Yi law could be executed inpartially. However, Yi law was under the most circumstances obeyed by the people because of the existence of the institutions guaranteeing the fairness of the practicing of the law. These institutions include the choice and operation of the local judeges, public opinion, and religious ideaology.Liangshan Yi law also treated the cases distinctively in accordance with the status of the parties. When the murder was committed against the Black Yi, the superior class in Yi society by the White Yi, the punishment was more severe than that committed against the White Yi by the Black Yi. The rule of One Black Yi Equal to Four White Yi was adopted when the case was solved, but this norm could be interpreted in five different ways, of which what was chosen was totally determined by the power of the victim family. Naturally, when the family of White Yi killer was weaker than the Black Yi, the most severe interpretation would be chosen. Generally speaking, the Black Yi enjoyed the privileges of the society and more legal rights, but the White Yi, as the inferior, had their ways of protecting themselves.The most important marriage institution was the marriage within the same class, if any female member of Black Yi married to or had sexual relation with White Yi, she would be sentenced to death. While any male member of Black Yi married to or had sexual relation with White Yi, he would be punished less severely. Besides this, marriage outside the Yi nation was also forbidden. All the marriage was arranged and decided by the parents and brothers without the consideration of the willingness of the people who would get married, since marriage was treated as a kind of method to unite more families to strengthen the power of the families. While marriage was the unity of different families, the divorce was always followed by the wars between two families, because being divorced was regarded as the dishonour to the family.The found of Communist Party government in Liangshan Yi Area ,the Democracy Reformation and the following political movements, which regarded both the traditional clan and the Yi law as backward and counter-revolutionary, and which tried every means to eradicate them, greatly influenced the history of this area and brought a new chapter for the Yi law. The fifth part of the dissertation retells the whole history of this period, which was full of Great Mass Movements, leading to both the damage to the traditional culture and the hatred against the Han nation by the Yi people.The sixth and seventh chapter discuss the cases of murder and marriage at the present time. The author, after comparing the same kinds of cases between the Old Liangshan period and present, proposes that the state laws greatly influence the function and operation of Yi law, which has been deprived of the jurisdiction of some of the cases. For example, the local law can not deal with the murder which is directly investigated by the state law. And the family can never force any of its members to kill himself. The Yi law can only deal with the compensation problem brought forth by the parties who are not satisfactory with the sentence of the state law. Of course it functions in the cases while the state does not regard as the crime, however, the state law still has its final saying on those cases treated by the Yi law. What’s more, some parties, when they think they are weaker , will ask for the help of the state law whose interference will bring new problems as the conflict between two legal systems on the principls, logic and punishing ways are existing.In spite of the fact that the marriage institutions have greatly changed, the local law on marriage is still obeyed by the local people, this fact shows that although the government tried its best to transform the marriage institutions through the Mass Movement, the local people still are fond of the traditional law instead of the so called "modern, advanced system." The conception of status still influence people’s marriage, marriage or sexual relation outside the same class will be punished by the clan,though the way is quite different from the Old Liangshan. Marriages are still arranged by the parents, and every marriage is carried out by paying some money to the parents. All these traditional systems had been criticised during the Mass Movements,but they are still operating in the Liangshan Yi society today, it tells us that any reform will meet failure if it does not show respect to the local culture and the will of the local people. It is a lesson for the rationalists who believe too much in the radical reform. However, compared to the failure of radical movement, the market economy has brought about great changes.Finally, in the last chapter, the author concludes some reasons why local people still choose the Yi minority law instead of the state law:the familiarity with both the language and knowledge, the clan organization, the religious control, the authority of the local judges, the less expense of the Yi law and the final result is reached through discussion and negotiation. It is said at the end of the dissertation that the Yi law, because of the challenges from both the political side and the market side, has its own problems such as the distortation, the disruption. It is purported that the success of rule of law in the Yi minority area totally depends on the cooperation of local law and the state law. Specifically speaking, the local law can solve the disputes of peoples when the state does not provide any regulation, the state law can absorb some norms of the local laws and make the state law more suitable to the people’s life, since the most part of the state law comes from the outside and is different to the local people’s life. Thirdly, the state court judegs can cooperate with the local judegs. They can work together to solve the dispute ,thus making the state law and the local law cooperate with each other.更多还原