一、司法实践中的非规则之治中国自古是一个农耕文明相当发达的国度,“重农抑商”是中国传统制度文化的重要特征之一,“隆礼轻法”也就必然是中国精神文化反映出的一个重要特征,这种文化传统与建构在陌生人社会上的现代法治是相悖的。随着中国的现代化改革的推进,“法治”已经成为社会的一个主流话语。法治即规则之治,规则之治几乎是现代法治的核心。然而,“我国的社会现实表明,近年来农村的工业化发展很快,但是民间文化、宗教信仰、传统社会组织等并没有消失,而是不断表现出巨大的生命力。”在目前国家主导型的法治建构模式下,乡土社会的现代性和传统性、正式法与民间法的冲突表现尤为突出。 I. The Rule of Non-Rule in Judicial Practice China has been a well-developed country in agriculture since ancient times. It is one of the important features of the traditional system and culture in China. It must be an important characteristic reflected in the spiritual culture of China. Such a cultural tradition is contrary to the modern rule of law built on the strangers’ society. With the promotion of China’s modernization reform, “rule of law” has become a mainstream discourse in society. The rule of law is the rule of the rule, the rule of the rule is almost the core of modern rule of law. However, “China’s social reality shows that the industrialization of rural areas has developed rapidly in recent years, but the folk culture, religious beliefs and traditional social organizations have not disappeared, but continue to show tremendous vitality.” In the current state-led Under the mode of law construction, the modernity and tradition of native society and the conflict between formal law and civil law are particularly outstanding.