Modern academic researches on Chinese traditional jurisprudence mainly focus on its history of thoughts and history of systems, which basically helps people understand many details of the subject, but lacks a philosophical perspective in a deep sense, not speaking of constructing an independent modern Chinese jurisprudence deducted from the traditional one. To better utilize the resources of Chinese traditional jurisprudence and enhance the confidence of modern Chinese theories, it is necessary to interpret the traditional jurisprudence from a new perspective of practical rationality, which will be of great help to the forming of a new practical view on the rule of law. The traditional Chinese jurisprudence finds its roots in legal practice, and it is under the premise of ″practice″ that the jurisprudential thoughts were born. Like all other traditional thoughts, Chinese traditional jurisprudence does not aim at building a systematic theory, but rather, to solve the problems in reality. Therefore, it is a legal thought based on practical rationality rather than scientific rationality, and it pursues a rational way of problem solution rather than an objective standard answer. The theoretical direction and aim of thoughts of the traditional jurisprudence are mainly found in the Confucian jurisprudence and orthodox jurisprudence. What should be noticed is that ″practice″ here does not simply refer to ″activities,″ because not all ″activities″ can be called ″practices.″ Only those activities with goodness as their purposes can be called ″practices,″ while in China the good purposefulness is based on the Confucian value system favored by the society. The practical style of the Chinese traditional jurisprudence features not only the pursuit of goodness, but also the dimension of practical wisdom, the latter of which is the best quality of the traditional legal practices. The Chinese traditional jurisprudence serves as a cultural premise of modern China practical school of rule of law. China practical school of rule of law opposes designing its development path from the text, but advocates that the rule of law is an action, believing that only through continuous actions can we realize the rule of law in a real sense. The rule of law is just like an open game—people learn to play the game through practices. To create the rule of law through actions should become the guideline of China practical school of rule of law. At the same time, it should also be the basic way to build the rule of law in modern China. It is an important topic to interpret the Chinese traditional jurisprudence in a modern way, and the theoretical interpretation from the practical philosophical perspective is endless. The research done here is only a small start. People will reach a consensus in theory as they deepen their understanding of this topic. Also, it is of great significance to dig out the resources of the traditional jurisprudence and cultivate the theory confidence among the jurisprudence circle of modern China.
引用本文:
武树臣 武建敏. 中国传统法学实践风格的理论诠释----兼及中国法治实践学派的孕育[J]. 浙江大学学报(人文社会科学版), 2013, 43(5): 7-17.
Wu Shuchen Wu Jianmin. Theoretical Interpretation of the Practical Style of the Chinese Traditional Jurisprudence: The Cultivation of China Practical School of Rule of Law. JOURNAL OF ZHEJIANG UNIVERSITY, 2013, 43(5): 7-17.