评析中国传统的“无讼”观念
Remark on the traditional conception of no litigation of china
高翼飞
【摘要】无讼思想作为中国的传统诉讼观念，对中国的法制发展具有深远的影响。儒家礼教是无讼的思想渊源。孔子认为审判的最终目标就是息争止讼。无讼观的内涵是不以诉讼作为解决纠纷的主要途径，并尽量避免诉讼的发生。其本质是追求和谐的社会秩序。这种观念表现为：在中国古代，统治者采取调处息讼的官方政策。百姓对诉讼普遍怀有厌恶的心态，宁愿选择民间的调解，也不愿通过诉讼来解决彼此的纠纷。无讼观念在中国的形成和发展根源于自然经济基础上产生的礼治秩序、儒家思想的熏陶以及家国一体的社会政治结构下统治者的大力推动。
诚然，无讼观念具有一定的历史合理性。诉讼的激烈对抗极易破坏礼的秩序。在古代中国这样的礼治社会，诉讼决不是解决纠纷的最适当的途径。作为有效避免冲突升级的非对抗性机制，调解当然地成为诉讼的最佳替代物。然而，无讼有很多不利于建立现代法治社会的消极影响,诸如：公民的权利意识淡薄、难以树立对法的信仰等等。尽管无讼的传统意识有其缺陷，我们仍不能对它全盘否定。无讼的观念帮助我们正确认识法律与道德的关系，揭示了诉讼的弊端和法的局限性，为纠纷的解决另辟蹊径。我们应从中获得经验和启发以构建当今的和谐社会。
Abstract
The conception of no litigation is Chinese people’s conventional opinion of lawsuit that had profound influences upon development of legal system of China. Confucian ethic doctrine is its ideaistic source. Confucius holds the view that to appease disputes and put an end to litigation is the ultimate target of judgement. The connotation of no litigation is to avoid lawsuit as far as possible and do not regard lawsuit as major approch to appease disputes. In essence,it is in the pursuit of harmonious social order. The representations of this idea are as follws. In ancient China，ruling class adopted official policy of suppressing lawsuit and advocating mediation. Common people’s attitude toward lawsuit is generally disgusted.They would rather choose folk mediation than lawsuit to resolve each other’s disputes. Emergence and evolution of this conception attribute to stable social order under rule of Li based on natural economy, edification of Confucianism and impulse from ruler under the social and political framework that kindreds integrate with autarchy.
It is undeniable that the conception of no litigation has historically some rationality. Lawsuit is drastically adversarial and easy to destroy the order that Li pursue. Lawsuit is not the most suitable approach to appease the conflicts in such a society under control of Li as ancient China. As an effective nonadversarial mechanism to avoid more disputes, intermediation naturally became the best substitute of lawsuit. Nonetheless, this conception has many negative influences detrimental to construct the modern society under rule of law，such as citizen’s consciousness of right is poor , people have no belief of law,and so forth.Even though this idea has its own defects,we still cannot negative it entirely.The conception of no litigation helps us correctly realize the relations between ethic and law,expose the abuse of lawsuit and the limitation of law,and supply another path to resolve disputes.We should draw on the experience and gain the enlightenment from it to build our today’s harmonious society.
