以史为鉴，任何一种理论的打造，都需要诸位学人接力，以使脉络开阔，一如西方自然法，二如中国儒学。伊涛先生书写权利儒学，公开发布的第一篇论文便是《家庭伦理的儒学内涵与权利的备选位置》。相隔十余年，李季鸿先生将此文译作英语，其以理论扬帆为志业的心境，昭明可见。本刊初创时，曾连载伊涛大作《权利儒学的扩展：喜剧素材与法哲学视角》。今又收到刘畅先生赐文一篇，同样能见其接力伊涛的理论境心。何仁富先生以书评的形式回应王治军先生，二者无异于弘扬和续写儒学。袁崇轩再赐译文，更有助于中文学界窥视和梳理西方家长主义的理论脉络。因四篇文章具有异曲同工之妙，遂而在此组配。
** 作者简介：李季鸿，山东师范大学法学院。原文作者：伊涛。本文中文版：最早刊登在《法制与社会发展》2014年第3期。当时的署名单位：吉林大学法学院、理论法学研究中心。
Abstract: Notwithstanding the
feedback model（Fan Kui Moshi，反馈模式）1
of ethics. This article aims to explore howthe law and its inherent right discoursemaintain the ethics relationship and towhat extent it can play a role .Around 2010s, the courts in Chinafrequently quoted the concept of filialpiety in the Confucianism classics toelucidate the filial dispute. The PrimaryPeoples Court of Dongcheng Districtof Beijing Municipality once stated in ajudgment that China possesses the finetradition, as the saying says “filial pietyis the most important of all virtues”（百善孝为先）3
as judicial dictum into the judgment.Literally, the judgments made by the twocourts are based on the law. At that time,the law of the Peoples Republic of Chinaon the Protection of Rights and Interestsof the Elderly enacted in 1996, stipulatesin Article 10 that the elderly mainly relyon their families for support, and familymembers should care for the elderly;
Article 11 stipulates that the supportershould fulfill the duty of supportingthe elderly economically, taking care ofthem in daily life, and offering spiritualcomfort. The current Constitution, inArticle 49, further stipulates that adultchildren have the duty to support andassist their parents. It is worth reflectingthat in the contemporary context wherethe government must follow the law, thefilial piety doesnt concern about legalbasis, so why do the judges exert theconcept of Confucianism filial piety toelucidate the cases. This involuntarilycomes to the question whether Confucianfilial piety has influence on contemporaryfamily ethics.Confucian Filial piety and theFamily Ethics in TransformingChina14Scholars, comparing the Chineseculture and western culture, in terms ofinnate mechanism of intergenerationalrelationships, the west follows therelay model （Jie Li Moshi， 接力模式）44444
至于犬马皆能有养；不敬，何以别乎）Theword “today”6
99999Some scholars even divided the historyinto two parts: the history that happenedbefore the Analects but was written intothe Analects; and the history that appearedafter the Analects however was influencedby the Analects .10
father can demand his son to die, and theson has no choice but to comply. Whendogs are desperate, they jump over walls;
when women are desperate, they jump intowells; when children are desperate, theyalso jump into wells. Nevertheless, Lu Xunhimself was even more filial than thosewho claimed to stick to the Confucianismand he never negated the Confucianism.
their children reach the legal age , theyare often happy to let their children liveindependently, and they tend to believethat God will continue to look after theirchildren as usual18
growing mechanism of Confucianism. Asa strategy to cope with maintaining theincreasingly unreliable intergenerationalrelationships solely through naturalblood ties and kinship, the feedbackmodel of the intergenerational systemand its inherent filial piety is originallythe common sense of the peoples dailylife, and the Confucianism classics arethe carrier of that consensus. Becausewhy the filial piety in the Confucianismclassics is widely concerned incontemporary society, to a large extent, istriggered by the problem of maintainingintergenerational relationships onlythrough the blood ties and kinship, andit is less to say that the contemporaryChinese pay attention to the argument offilial piety itself in Confucianism classicsthan concern whether those argumentsbecome the solution to todays problems,which is provided by the ancients. Infact, the courts could just solve the filialdispute only via the modern legal system.Stating the the concept of filial piety intothe judgment only 1919191919indicates regarding theConfucianism classics as the authoritativeexpression of the concept of filial piety andenhancing the legitimacy of the judgmentvia authoritative expression, and thusmake the concept of the Confucianisminherent in peoples daily life convergewith the concept of the Confucianismin Confucianism classics. Meanwhile,stating the concept of filial piety into thejudgment is in fact the behavior that whenthe generation of Confucianism nowadaysshows weak, (the courts) use the conceptin Confucianism classics to effect peoplesdaily life in order to spread from ancient tonow2020202020, thereby enhancing the rationality ofthe generation judgment of the Confucianconcept.Stating the concept of filial piety inConfucianism classics into the judgmentsis closely related to the pragmatic judicialjurisprudence. This type of judicialjurisprudence aims at emphasizing aslong as the court could solve the disputeswhich have its basis on law and reason,the non-statutory law factor is able toenter into the judicial process and emergeon the judgments, making the judicial actclose to peoples daily life.24
for the future. Another folk saying, “oneold can raise ten children; ten childrencant support one old”（家有一老养十小，家有十小养不了一老）. The content ofthe former sentence and the concept ofrasing a child to support when someoneis old, has no difference, both aimingat highlighting the concept of “morechildren, more blessing”（多子多福）,but the comparison of the number “one”and“ten”in the sentence, indeed showsthe desire to rise the percentage of beingsupported when one is old. But as thelatter sentence says, whether there isconsequent connection between morechildren and more blessing, it dependson how much the feedback model andits inherent concept of filial piety play arole. The inarticulate intergenerationalcommunication would also be a reason offilial dispute. The folk saying “childrenhave its own blessing”（儿孙自有儿孙福） reveals the embarrassment of whichin the duration of the intergenerationalcommunication, the childrenmisunderstand or reject their parentsemotion expression, and also revealsthe helplessness of the parents who aredisappointed about the fact, whether thechildren would reciprocate towards them.In the settlement of the filial dispute,meshing with human nature is thecommonality of the ethics system andthe legal system, ethics system is morecapable to mess with humans experientiallife emotion.26
awareness of the heart originally belongsto the same discourse system, which wereall built on the blood ties and kinshiprelation.21162116211621162116 If it has to call for the humansinstinct and nature and thus invoke theawareness of humans heart, the ethicsdiscourse is more suitable than the rightdiscourse.The choice of the right discourseis the (legal) conduit mechanism forthe ethics discourse to enter into thejudicial judgments. Relying on thatconduit mechanism, the ethics discourseis congruent with the right discourse inthe judgments, which make the ethicsdiscourses , which is weak in the filialdispute, regain popularity again, thusrecovering the position that the ethicsdiscourse should have in the ethicsrelationship and performing the formerfunction. Allowing the ethics discourseto regain the prominence, is to use theethics discourse to summon humansinstinct and nature, thus convoking theconsciousness of humans heart. Oncequoting the ethics discourse into thejudicial judgments, the embedding of theright discourse is somewhat weakened,while the direct focus of ethics discourseson ethics relation is strengthened. Sowhether it is effective to use the rightdiscourse to solve the filial dispute filialdispute is mainly up to the fact thatwhether the conduit mechanism servingas the role of introducing the ethicsdiscourse into the judicial judgmentsThe Confucian Connotation of Family Ethics and the Alternative Position of Rightscould function as its role. At the sametime, the choice of the right discourseis on the premise of the fact that theethics discourses is obstructed, and onlywhen the ethics discourses is completedhindered, it makes parents choicesslide from intergenerational system tothe intergenerational legal system. Thefact that people put forward the rightdiscourse owing to the obstruction of theethics discourses, also aims at indicatingin the daily lives people consider andweigh the ethics discourse more thanright discourse. The priority given to theright discourse in the filial dispute, isintended to reinstate the primacy of theethics in the daily lives.This article uses the term “thealternative position of right” ( 权利备选论) to encapsulate the phenomenaof placing the right discourse into thealternative position to address theproblems in daily lives,2525252525 Its has twoaspects: the right discourse and the ethicsdiscourse; the priority choice of the rightdiscourse is for the primacy of the ethicsdiscourse. Two aspects of content containtwo relationships of two discourses.The unreliability of maintaining theintergenerational relationships solelythrough ethics discourse is the startingpoint of choosing the right discourse. Atthat starting point, the two discourseshave the paralleling relationship.1515151515 27Thoughthe intergenerational ethics system andthe intergenerational legal system whichcontains the two discourses originallypossess the same content of filial piety,the legal tropes make it not simplyequivalently presenting the dualisticdivision. The ethics discourse is prior tothe right discourse, the right discourse isposterior to the ethics discourses, and theemergence of the latter rooted in the lackof the prominence of the former, namelyas the paralleling relationship of the twodiscourses. Stimulating the people touse the ethics discourse to maintain theintergenerational ethics relation is thetermination that the right discourse getto be used. To reach that termination, thetwo discourses presents the progressiverelationship. Through the dialoguebetween the intergenerational legalsystem and the intergenerational ethicssystem on the level of judiciary, the rightdiscourse shift to the priority, the ethicsdiscourse shifts to the following. Thechoice of the former aims at draw out thelatter, in another word as the progressiverelation. The key of the progressiverelation is at drawing out.Saying the right discourse is only atthe alternative position, also intendedto oppose placing it either in a prior or aposterior position. First, placing the rightdiscourse in the prior position indicatesto elevate the law and shrink the spaceof the ethics discourse, which is difficultto suit peoples life.; Second, placing theright in the posterior position also meansto elevate the ethics discourses anddiminish the space of the right discourse,which doesnt align with the era that focuson the legislation, and even negates theexistence meaning of the law; Third, ifthe legislation makes the rigid regulationon the right discourses prior or posteriorposition, it would certainly diminish thesubjectivity which is manifested by thepeoples choice of the right discourse orthe ethics discourse. Neither not elevatingthe law nor the ethics, only placing thetwo discourses in the alternative position,it depends on how the people make thedecision according to their daily life andwhat decision they make, whether theright shifts to the prior or the posteriorposition. The “alternative position ofright” also emphasizes, the choice rightsof prioritizing the right or prioritizingthe ethics should return to the people, inorder to fully express their subjectivity.The Expression Models of FilialPiety and the Legal Quandaryof Filial DisputeAs long as use the legal system andthe method of judiciary to solve the filialdispute, the judiciary has to face the legalquandary underlying in the filial dispute.Referring to the Confuciuss words,“Todays filial piety, how to distinguishit”（今之孝者，何以别乎）, support 77777andrespect are actually the two ways ofshowing filial piety.55555 They are all guided bythe spirit of comforting parents heart andthe behavior of ensuring parents body,which make comforting parents as thethird way to show filial piety to parentsgains the prominence. The Analectsof Confucius, Li Ren says “while theparents are still alive, dont travel far. Ifyou do travel, be sure to have a specificdestination.“ （父母在不远游，游必有方）
Childrens far travel easily causes parentsto worry about the living condition andliving state. Not traveling far could reducethe psychology burden on worrying thechildren. If the children have to travelfar, telling the destination could surelycomfort parents hearts, reflecting theconcept of comforting the parents.Supporting, respecting and comfortingthe parents all involves two aspects ofproblems, exterior behavior and the innerfeelings. If all three could be specificallymanifested as gaining the comfort whenparents seeing the children, or thechildren saying some solicitous wordsto make parents feel the kinship whenmeeting with each other, then the threecould be achieved in the situation wherethe the living space concentrates. Becauseits easier to feel kinship when the livingspace concentrates. If the children cannotlive with the parents due to the reasonssuch as studying or employing in theforeign places and the widespread of thesmall family model, there will be thesituations where the children travel farwhile their parents are still alive. The lattersituation is the common phenomena ofthe contemporary society.282828282831According to the surveys, nearlyninety four percent of the Chinese reckonthe parent-children relationship is the oneof the most important ethics relationshipsof the contemporary society, and showingfilial piety towards the parents is the well-The Confucian Connotation of Family Ethics and the Alternative Position of Rightsknown matter to all of the people, butnearly eighty one percent of the people,despite having the morality knowledge,however owing to the various reasons,cannot meet the parents regularly.2929292929
When we place the inner feelings and theexterior behavior involved in the threeways of showing the filial piety at thelevel of the knowledge and action, wecould find out the filial piety possessesfilial virtue and filial acts, including thefilial acts of supporting the parents andcomforting the parents body, and alsocontaining the filial virtue of respectingthe parents and comforting the parentsheart. Having the morality knowledge butbeing unable to turn it into action due tovarious reasons is called the separation ofthe knowledge and the action. Meanwhile,just as the other scholars point out,owing to the emergence of social securitysystem, if the society elderly care takethe place of the family elderly care, theelderly is able to acquire the pension andother material assistance to guarantee thereality life, and the emotion interactionabsolutely becomes the main content ofthe intergenerational relationships.30
speaking in terms of the right discourseThe Confucian Connotation of Family Ethics and the Alternative Position of Rightswhile executing the enforcement of thejudgment, only refers to the fact thatfilial act possesses the one-sidedness.Notwithstanding the modern law is ableto affect the problems of the unreliabilityon maintaining the intergenerationalrelationships only through blood ties andkinship from the perspective of exterioract, but it cant affect that problem fromthe perspective of innate feelings. Weexpect that the subsequent law enactsmore optimistic regulation, but the lawshould never neglect the saying “laws donot hurt the hearts.”!（法不诛心）
Though parents expect the childrento visit them based on the kinship, theyperhaps arent able to accept the visit ofchildren based on the execution of thejudgment, wishing to hear the ethicsdiscourse instead of the right discourseand obligation, and it still cannot negatethat the emergence of spirit support on thelaw and judgments is meaningful. Despiteon the level of ethics and kinship, the actof visiting couldnt completely equate tothe act of executing the judgment. Buton the level of right discourse, the act ofvisiting equates to the act of executing thejudgments. In this way, the filial problem isresolved, and the problems of filial virtueare eased. Because even if the childrenvisit the parents not out of the kinship,its in line with parents wishes to see thechildren, and the visit lack of willingnessis still a kind of visit. The reason why thefilial piety becomes the legal quandaryis that the morality and the law have theessential difference, which involves theentanglement of the two perspectives ofjurisprudence（两种法治观）.Based on the clear distinction andincompatibility of the morality and thelaw, so the law and the judgments shouldavoid emerging the discourses of ethicsand morality, which contains a perspectiveof jurisprudence, called “rule of law” or“governance by Rechtsstaat”. It aimsto stress that the problems of the ethicsand morality should be regulated by theethics system, and the problems of thehuman exterior act should be regulatedby the legal system. The aforementionedjudgments have already full of thediscourses of the ethics and morality,and the emergence of the filial piety inthe Confucianism classics increases theethics narrative color of the judgments.Although the judge adheres to the modelof the clear distinction of morality andlaw when seeking the legal basis for thedecisions, in the area of judicial narrativebeyond the legal basis, the judges donot distinguish the law and the ethicsclearly, but show a certain degree ofintegration, using a model unified theethics and law to enhance the rationalityof the judgment. Meanwhile, to confirmthe word“support”in the statutory lawalso includes the spirit support , needs toconfirm another concept of jurisprudenceentitled as “governance by Rechtsstaat”.Especially according to the concept ofHegels “governance by Rechtsstaat”,the so-called law not only includes thestatutory law but also contains a certainrange of ethics content.