"中西会通"与中国法制现代化中的仿行西法偏好

19世纪中叶以来的中国法制现代化运动虽是在"中西会通"的旗帜下进行的,但不同时期、不同政权却有着"仿行西法"的共同偏好.之所以形成这种选择的偏好,是因为(1)国人以西法为强国之道,以为自强救国必须仿行西法;(2)民族原有制度文化整体落后,无能力创新也无思想资源可资创新,不整体抄袭西法则无法向新的竞争时代交卷.这种西化取向在过去是可以理解的,但现在是对其得失进行反省的时候了.

The communication of the Chinese culture and the western culture and the predilection for the western legal system during the modernization of the Chinese legal system

The modernization movement of the Chinese legal system, th ough undertaken in the spirit of "the communication of the Chinese culture and the western culture", has a common predilection for the western legal system in different periods or in different regimes. The selective predilections are form ed due to: (1) The Chinese people took the western legal system as a means for C hina's renewal, and believed a copy of the western legal system was of necessit y; (2) the inherent national system culture fell behind, was unable to innovate, and had no idea resources for innovation, thereby copying the western legal sys tem so as to enter into new competitive age. This westernization orientation was understandable in the past, but it is time to contemplate its benefits and defe cts.