跨文化的实证法学研究：文化心理学的挑战与贡献

跨文化的实证法学研究把文化心理学的理论突破和心理学的实证方法引入到对法学基本原理的研究之中。文化心理学研究中发现的东西方文化在价值定向、道德判断和思维方式等方面的差异能够给跨文化实证法学研究带来重要的启示。在对一些重要法律问题的认识上, 例如法律中的因果关系和责任的判定、合同形成以及纠纷调解等方面, 跨文化心理学研究已经发现了显著的跨文化差异, 这些差异可能会影响到不同文化背景的人对法的认识、法的建设以及法律的应用。我们认为跨文化的实证法学研究不仅可以为法学研究提供一条新的研究路径, 更主要的是还可以为中国法学研究的国际化和国际法律纠纷提供理论指导。

Challenge and Contribution of Cultural Psychology to Empirical Legal Studies

Empirical legal studies can benefit from the research findings of cultural psychology to understand the fundamental principles of law. Research findings in cultural psychology have shown that Eastern Asian cultures and North American cultures differ significantly in value orientations, moral judgments and cognitive styles. East Asian values emphasize collectivism and North American values emphasize individualism. East Asians moral reasons are centered on the principles of duties and responsibilities whereas North American moral reasons are centered on the principles of autonomy and justice. East Asian cognitive styles tend to be more holistic, focusing on context, backgrounds and relations and the North American cognitive styles tend to be more analytic, focusing on objects, categories and dispositions. Such cultural differences have profound implications in legal understanding and legal practices, as laws are human machinery and are subject to the influence of human values, moralities and cognition. Mounting evidence in cross-cultural legal studies has shown East and West differences in causation inquiry, responsibility judgments, contract formation and mediation practices. Research indicates that East Asian causal reasoning is less likely to make the fundamental attribution error as North Americans do. East Asians’ responsibility judgments, compared with North Americans’, involve more contextual information (such as moral judgments) than the law actually warrants. East Asians’ contract formation may be more based on relational obligations than the North Americans’, which are rule based. The compensation judgments by East Asians appear to be based on the consequence whereas judgments made by North Americans seem to be based on intention judgments. East Asians also prefer mediation in conflict resolutions while North Americans prefer litigation in conflict resolutions. We argue that these differences could influence people’s understanding, construction and use of laws in fundamental ways. As the law attempts to further understand people, and as theorists continue to evaluate how human life and law influence each others, scholars in both psychology and law must challenge themselves to reflect on the law’s substantive and procedural standards being applied in different cultural groups.. We hope our paper can generate enough interests among Chinese psychologists and legal scholars to start the journey towards finding solutions that both considers cultural psychology’s empirical findings and effectuates our legal ideals. The cross-culture empirical legal studies hence not only provide a new paradigm for legal scholarship but also provide theoretical guidance for advancing Chinese legal studies in global stages as well as in resolving international legal disputes between people from China and other countries.