再論調解及中西正義體系融合之路

從體現“移植主義”和“本土資源”之對立的兩篇代表性著作的不同邏輯內涵出發，研究者有可能找到一種與兩者都不同的研究進路：擺脫單一面和理想化的建構，尤其是西方演繹邏輯所建構的理想類型思維，採用超越簡單二元對立的二元合一“實踐邏輯”，並採用多元整體和歷史回顧與前瞻願想的視野來認識、理解中國古今的正義體系。這一探索特別聚焦於非正式調解和正式法院審判的並存以及兩者間互動的“第三領域”，將其置於全球的比較視野中來突出古今中國（和來自“中華法系”傳統的日本與韓國“東亞”國家）這方面與西方正義體系的深層不同，借此來指向一條超越中西二元對立、非此即彼的研究進路；進而從超越主觀和客觀、意志和結構二元對立的實踐邏輯的認識論出發，通過考察中國古今正義體系整體的實際運作，來探索一條比中國傳統法理和西方形式理性法理都更符合中國實際和需要的、融合中西的未來長遠發展道路。

This article begins with the opposed views of the ''transplantationists'' and the ''indigenous resources'' schools of thought, focusing on the different logics evidenced in two representative articles, to set the stage for an approach that differs from both. The suggestion is that we set aside unidimensional and idealized constructions, especially of the ideal-types approach based on formal deductive logic, and adopt instead a ''logic of practice'' approach that proceeds from the interactive relationships between dichotomized binaries. That should be placed within a perspective of unified multivariate wholes, and of both historical retrospect and prospective vision, in order to grasp and comprehend the past and present of the Chinese justice system. This article emphasizes especially the co-existence of informal mediation with formal court adjudication, as well as of the ''third sphere'' born of the interactions between them. Those are set in a broadly comparative global perspective to highlight the deeper differences between the Chinese(as well as the ''East Asian'' Japanese and Korean systems stemming from the ''Sinitic justice system'') and the Western justice systems. The purpose is to point to a path of research that goes beyond the simple either/or dichotomous approach to the Chinese and the Western systems. The article argues for a logic of practice approach that sees beyond the either/or oppositions of the subjective and the objective, the voluntarist and the structuralist. The purpose is to search for a road to legal development on the basis of the actual operational realities of the entirety of the justice system of China, both past and present. That road would be one that goes beyond both the traditional Chinese justice system and the formalrational Western legal system, one that syncretizes the Chinese and the Western, and accords with the actual needs of China, present and future.