村规民约的效力基础与国家法的契合

内生于乡土社会的村规民约经历了从传统到现代的创造性演进过程,在乡村治理中发挥着重要的秩序整合作用。近代以来,乡土社会的剧烈变革不断解构着村规民约的社会权力基础,国家权力向乡村地域的下沉不断冲击着村规民约的生存空间,村规民约面临着巨大的发展困境。这时,能够契合现代乡村公共精神和“乡民社会”向“市民社会”转型期的契约性权力便进入了视野,这种基于同意而形成的社会权力作为村规民约的效力基础最具理性和持久力。契约性权力为村规民约提供了权力支持,有利于实现村规民约与国家法在共生共存基础上的有机契合。

Validity Basis of Village Regulations and Folk Conventions and Their Agreement with National Law

Village regulations and folk conventions were formed in rural society and have experienced a process of creative evolution from tradition to modernity,playing an important role in straightening out social order in rural governance.Since the modern times,drastic changes of rural society have continuously deconstructed the social power base of village regulations and folk conventions,and the expansion and reinforcement of state power in rural areas have led to the difficulty in exerting their actual effect.At this time,the contractual power that accords with the modern rural public spirit and with the transition from“society of villagers”to“society of citizens”has received much attention.This kind of social power formed on the basis of consent is the most rational and lasting power if it is taken as the validity basis of village regulations and folk conventions,because it can provide them with power support,which is beneficial to realize the organic agreement between them and the state power on the basis of symbiosis.