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伴随着我国法治理论研究向“生活世界”的回归,回归生活世界的法治包含着应然和实然的向度,即国家法和民间法的二维建构。国家法侧重于应然性,而民间法则强调实然性,两者在法治建构上各有其局限性和功能障碍。目前学界对民间法的界定尚未形成较为统一的认识,而对法治实践中国家法与民间法的合理互动这一论题的研究亦远未形成较为成熟的理论体系。基于此,本文以中国乡村社会的民间法作为自己的研究对象,在对民间法的理论维度加以界定的基础上,对国家法与民间法的关系与互动展开讨论,厘清国家法和民间法各自存在的价值和空间,各自作用的领域和范围,并进而思考如何在建设法治中国实践中构建国家法与民间法的良性互动的“制度空间”。重新审视正式制度与非正式制度之间,国家与社会之间的关系。在探究法治中国实践路径上进行实然和应然的向度考量,实现民间法与国家法在共生共存基础上的有机契合。
With the return of the study of the theory of the rule of law in China to the “life world,” the rule of law in the world of living contains the two dimensions of the state law and the civil law. State law focuses on the due nature, while the folk law emphasizes the reality, both of which have their limitations and dysfunctions in the construction of the rule of law. At present, the academic circle has not yet formed a unified understanding of the definition of folk law. However, the study of the topic of rational interaction between the law of the state and the folk law in the practice of the rule of law is far from forming a mature theoretical system. Based on this, this article regards the folk law of Chinese rural society as its own research object, on the basis of defining the theoretical dimension of civil law, discusses the relationship and interaction between state law and civil law, and clarifies the differences between national law and civil law The value and space of existence, the fields and scopes of their respective roles, and then how to construct a benign interaction “system space” between the state law and the civil law in the process of building the rule of law in China. To re-examine the relationship between the formal system and the informal system, between the state and the society. In the process of exploring the practice of rule of law in China, it is necessary to make a proper and proper consideration of the degree and realize the organic cooperation between the civil law and the state law on the basis of symbiosis.