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法律社会学

传统文明的现代转型:梅因论印度法律与社会

2025-01-11 作者: 李宏基

【作者简介】李宏基,北京大学社会学系

【文章来源】《社会》2024年第5期

【内容提要】印度是梅因社会演化理论的焦点,也是西方古典社会思想家着重关注的东方文明。本文尝试呈现梅因理解印度的三个阶段,以期解答其社会演化理论如何回应文明差异性与转型适应性的问题。在早期研究中,梅因指出传统文明的转型方向是“从身份到契约”,而停滞的印度未能实现变革。在印度任职期间,梅因观察到移植英国法的政策导致印度习惯法迅速瓦解,因而提出了缓和冲突的法典编纂策略。返回英国后,梅因意识到英印统治对推动现代转型和破坏传统秩序的双重影响,继而认识到东西文明传统存在差异,并以“冲突的钟表”的隐喻揭示出文明转型的适应性问题。梅因的印度观察深化了“从身份到契约”的演化思想,也为探讨中西文明演化与转型提供了独特视角。

【关 键 词】印度, 梅因, 社会演化, 现代化, 文明研究

【基金项目】本文系中国博士后科学基金面上资助“英国历史法学派的思想变迁与中国意义研究”(2023M730041)的阶段性成果。

【全文链接】https://www.society.shu.edu.cn/CN/Y2024/V44/I5/160


Modern Transformation of a Traditional Civilization: Maine on Law and Society in India

Abstract: India is the focal point of Maine’s theory of social evolution and also the Eastern civilization on which classical Western social thinkers focused their attention. This paper attempts to present the three stages of Maine’s understanding of India in order to answer the question of how his theory of social evolution responds to the questions of civilizational differentiation and transformational adaptation. In his early studies, Maine noted that traditional civilizations were transforming “from status to contract,” and that stagnant India, constrained by religion, failed to achieve this transformation. During his tenure in India, Maine observed that the policy of transplanting English law had led to the rapid disintegration of Indian customary law, and he proposed a codification strategy that emphasized the compilation of traditional Indian law as a means of mitigating the bitter conflict between English and Indian law. Meanwhile, Maine pointed out the significance of Indian village communities for the nineteenth-century Indian social order. Upon his return to England, Maine came to a conclusion that the nineteenth century India was still under religious influence and could hardly nurture the seeds of modern transformation. However, British-Indian rule had a dual impact on India, both contributing to its modern transformation and seriously disrupting the order of traditional Indian society. He further recognized the differences between the civilizational traditions of the East and the West, while the British colonialists had ignored these complexities. At the same time, he used the“metaphor of conflicting clocks” to reveal the adaptive problem of the modern transformation. Maine placed Indians’ adaptation to reform at the center of social progress and legal change. In addition, he expected to educate Indians to embrace reforms and thus achieve civilizational development in India. Maine’s observation of India has enriched his evolutionary thought of “from status to contract” and has provided a unique perspective on the evolution and transformation of civilizations in the East and the West.

Key words: India, Maine, social evolution, modernization, the research of civilization

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