權利的難題－－中國傳統法律的一個視角分析

權利不僅僅是一種觀念、意識或法律米語，更需要在相應的保障制度下現實地得到確立和維護。這一切構成權利的整體。然而，在中國傳統社會的物質生產力、民眾生活方式、學術思想和王朝政治需求等諸種因素制約下，權利無法突破觀念、意識及事實的狀態，上升為正式的制度。這種狀況造成王朝政治思想和社會法律實踐相亙矛盾，迫使權利在王朝整體精神與民眾利益訴求之間陷入困境。而民眾與官府為了解決詞訟背後的利益紛爭，不得不尋求各種非制度性的緩解機制。但是這些緩解機制存在先天的欠缺，無法根本上消解王朝立法理念與社會現實需求的對立。從長遠來看，這一權利的難題最終影響了傳統中國的社會進程。

Civil rights, which are more than concept, consciousness and law term, need corresponding institutions to be established and maintained in reality for sure. In the traditional society of China, civil rights, which was restricted by the productivity, the living model of the masses, social thoughts, and political interests, etc, could not develop into state law from private interests. In such a situation, the political idea of the dynasty was quite far from the social law practice. Consequently, the private interests, which seemed illegally, was in a dilemma between the spirit of the whole dynasty and the appeal to the benefit of the masses. Being short of relative Institution for private rights, the masses and feudal officials tried to find an informal mechanism to settle the disputes concerning private interests among people. The mechanism, however, went with its internal shortcomings and, as a result, was not really helpful in settling the disputes. In the long run, this dilemma of private interests had tampered with the evolvement of the traditional society of China deeply.