从实践理性到理性实践： 比较、比较法与法治实践

从个体人生和人类活动同为经历与试错过程这一人类学观察入手，可推导出比较法对于人类法治的独特价值和意义。就法律而言，不同族群的法律制度、组织、行为和观念等必然主要依赖并体现各自族群的经历与试错；比较法可以从他者的经历与试错中吸取经验教训，克服自身的局限，因而有助于促进人类活动从实践理性到理性实践的发展进程，与美国实践主义等主流哲学思潮不谋而合。而在比较法学领域，部门比较法最能体现从实践理性到理性实践这一重要特征，亟须得到构建和加强，从而实质性地推动法治的建立。我国法治实践也同样呈现出从实践理性到理性实践的发展趋势，而中国法治实践学派的兴起与使命正是推动法治中国实践的理性化。

From Practical Rationality to Rational Practice: Comparison， Comparative Law and the Practice of Rule of Law

Although they belong to different academic disciplines, anthropology and comparative law share a crucially important feature: comparison. They both focus on the study of the Other, so as to better understand the Self. The basic reason for which comparison is significant is: all individual life and human activity are a process of experience and trial and error; in order for the individual and ethnic group to survive and develop, we must pay attention to and study the Other, learning its experiences and avoiding its missteps. With respect to law, the legal systems, organizations, behaviors and notions of different ethnic groups depend primarily on and reflect such groups' experience, trial and error. In this regard, comparative law can enable us to learn lessons from other groups' experience, trial and error, remedy our own shortcomings, and thus benefit the progression of human activity from practical rationality to rational practice. Such an emphasis on practical rationality and rational practice coincides with such mainstream American schools of thought as pragmatism, as represented by Charles Sanders Peirce, William James and John Dewey. In the field of comparative law, because of its focus on specific matters, comparison within the branches of law best reflects the important transition from practical rationality to rational practice, and is thus in urgent need of establishment and reinforcement, so as to substantially help establish the rule of law. This paper then focuses on explaining the trend of development of China's practice of rule of law, namely, its transition from practical rationality to rational practice, and points out that an emphasis on practice is not only in accord with the gist of Marxist philosophy, but also agrees with China's long-standing cultural tradition. Members of the newly-emergent China Rule of Law School of Practice have devoted crucial attention to and/or participated actively in China's practice of rule of law. Aspiring to find an ideal road for China to realize the rule of law, this School has been focusing on China's practice of rule of law, with such methods as experiment and empirical research. With such characteristics, this School is in obvious agreement with American pragmatism, and therefore should pay close attention to and learn from the latter during its process of development and maturation. Such key words in this paper, including practical rationality and rational practice, should also become key notions of this School. As an academic community that wishes to make a genuine contribution to China's legal development, the major historical responsibility of this School should be to rationalize China's practice of rule of law. This will require this School to place greater emphasis on developing practical rationality and on decreasing or even eliminating blind, meaningless trial and error through induction, summary and design (including top-level design as well as comparison with the rule of law practice and theory of other countries or regions).