道德之债:莫斯对印欧人礼物的研究  

Moral Obligatio:Marcel Mauss’s Study on the Indo-Europeans’Gift

作　　者：张亚辉[1] ZHANG Yahui(School of Sociology and Anthropology,Xiamen University)

机构地区：[1]厦门大学人类学与民族学系

出　　处：《社会》2020年第3期173-211,共39页Chinese Journal of Sociology

基　　金：中央高校基本科研业务费项目“部落组织与封建王权:藏边地区的土地、政治与宗教的人类学研究”(20720171049)的阶段性成果。

摘　　要：本文重新梳理了莫斯在《礼物》一书中对罗马法、印度法和日耳曼法研究的材料,结合莫斯"人的范畴"的研究,试图指出:印欧人的礼物是第一等级和第二等级特有的交换方式,而且这两个等级的礼物交换原则各自不同;而构成现代西方社会主体的第三等级并没有一个符合礼物之道德要求的交换方式,除非继承日耳曼法的精神,否则现代社会终将陷入无法自拔的道德困境。通过与梅因的罗马法及印欧社会研究的比较,本文希望阐明,莫斯通过礼物研究建立的社会契约概念与罗马的债法之间有着密切的联系,而与自然法的社会契约论之间有着本质的区别。This paper re-examines Mauss’s discussion in his book Gift on Roman,Classic Hindu,and Germanic laws of"Gifts",in conjunction with his speech on the Category of the Persongiven in 1938,and concludes that IndoEuropean gifts were unique exchanges for the first and second classes,and that the principles of gift exchange were different.For Romans,the Real Law about res mancipi and the way of its exchangedefined in Jus civile were closely related to the nature of Romulus’s authority that was all about bonds and restrains.It became the core of the spirit of Roman gifts.The Germanic law,like that of the North American Indians,was based on peace between warriors.The threat of violence provided a guarantee of peace,so the gift was often thought to be toxic among German people.As for Hindus,the description of Anusasana-parva in Mahabharata embodied the inherent defects of the Dharma of Kshatriyas.This made the donation to Brahmin indispensable as means to make up for the incompleteness of the Dharma of Kshatriyas as well as a manifestation of the integration of the law with Brahmin’s property rights.In short,for the first and second classes of Indo-Europeans,the gift was the law,the same as vaygu’a in kula trade and copper objects in potlatch.However,the third-class people as the majority in the West does not have a way of exchanging gifts in accordance with the moral requirements,and unless the spirit of Germanic law is inherited,modern society could eventually fall into an inexorable moral dilemma.Rather than focusing on serving industrial and commercial law,modern states should assume the obligation of reciprocity in gift exchanges.Through comparing Maine’s research on Roman law with the study of Indo-European society,this paper hopes to demonstrate that Mauss had built upon Maine’s thoughts and developed his theory of social contract that was based on the law of Indo-European society,aquite different proposal to the social contract theory based on nature law.

关 键 词：社会契约 罗马法 日耳曼法 印度法 债 

分 类 号：B82-051[哲学宗教—伦理学] C912.4[经济管理]