法律多元主义的概念困境:涵义、成因与理论影响  

The Conceptual Dilemma of Legal Pluralism: Connotation, Causes and Theoretical Impact

作　　者：赵英男 Zhao Yingnan

机构地区：[1]中国政法大学比较法学研究院

出　　处：《环球法律评论》2022年第4期146-161,共16页Global Law Review

摘　　要：法律多元主义指的是某个社会群体拥有不止一种规范其社会行为的有效法律体系。作为一种事实,法律多元主义现象无所不在。在相关研究中,学者们大多将法律多元主义视为无可争议、理所当然的概念,却忽略了它所遭遇的困境:一方面,法律不止是国家法,还包括其他社会规范;另一方面,法律与其他社会规范的界限不明,导致法律概念过于宽泛。这一困境是任何法律多元主义理论都面临的深层概念难题,有观点因此悲观地认为应当放弃对于法律的界定。这种困境与悲观论断的根源,在于学者忽略了法律本身是一个民间概念。民间概念植根于各种各样的历史与现实语境,无法用精确的语言加以表述。但这并不意味着法律不可界定,而是指不存在有关法律的普遍必然主张。把握法律的民间概念特征,有助于我们走出法律多元主义研究的理论困境,也有助于我们反思一般法理学中有关法律性质的本质必然主张的合理性。Legal pluralism is a social fact that one social group has two or more sets of valid laws to regulate its members’ social behaviors. It is a common legal phenomenon widespread in our social life. As the research on legal pluralism matures, many scholars in this field come to concentrate on the concept of legal pluralism itself. It is an issue of importance because the questions of what could be understood as law in empirical studies and how we understand the multiple legal orders in one society largely depend on how we answer the question of what law is. Inspired by this problem consciousness, leading scholars in this field such as John Griffiths and Sally Engle Merry discovered one paradox underlying the concept of legal pluralism. They came to realize that they had been trapped in a dilemma: on the one hand, law refers to not only state law, but also other kinds of social norms;but on the other hand, the boundary between non-state laws and other social norms is not clear, as a result of which the concept of law becomes too broad to be useful. John Griffiths, Boaventura de Sousa Santos and Guenther Teubner, among others, try to provide a theoretical framework that they claim could make a clear distinction between law and other social norms while at the same time discern other types of law besides state law. But all of them have failed to achieve what they have promised. Thus, many scholars insist that we should give up defining law, abandon the concept of legal pluralism, and accept the concept of normative pluralism instead. However, this essay argues that the dilemma of legal pluralism originates from the fact that when scholars try to define what law is, they tend to provide a universal and necessary claim, ignoring law as a folk concept. Folk concepts are embedded in various historical and actual contexts and cannot be expressed clearly by language. Bringing this point to light has double theoretical significance. First, with respect to legal pluralism scholarship, to focus on the law as a folk concept mea

关 键 词：法律多元主义 法律概念 规范秩序 民间概念 一般法理学 

分 类 号：D90[政治法律—法学理论]