社会转型与权力支配:民族国家构建视野下的习惯法

习惯法是构建乡土秩序的基础，它大致分为“公”、“私”两类。以往的习惯法研究往往注重于“私”习惯法，而文章则着重考察建立在乡村权威基础上的公共习惯法。20世纪中国巨大的变迁可以看作民族国家建立的过程，国家权力开始渗透并控制乡村，它摧毁了旧有的乡土秩序，建立普遍规则统治，而习惯法作为一种旧封建陋习被清除。当今民间权威的重建，习惯法呈一种复苏态势，有效地影响了法的运行。但20世纪80年代以后，随着现代化在乡村的广泛深入，习惯法的影响成为一个不能确定的问题。

Social Transition and Domination:Customary Law in State-making

According to this research, customary law, base of rural society of China, could be divided into two classes： the public one and the private one. Traditional researchers have concentrated on the private customary law while this article explores public customary law which relates to rural authority. China have experienced great transition as state-making and nation-building in 20^th century, when state extended its power to rural area, destroying local order and building the rule of general law. However, customary law is revived with rebuilding of rural authority after having been suppressed for quite a long time. It has influenced the effectiveness of state law and resulted in law evasion. But its destination is yet to be certain since rural society where customary are rooted have been modernized widely from 8^th decade of last century.