清代水案治理研究——以甘青水利执照碑为中心

清代甘青地区的水案执照碑具有重要的法史价值,且同时蕴含着两种性质:其一是代表着官方的律法与规则,其二则是对民间惯例的延续和尊重。而水案的产生有着特殊的社会历史背景,加上其自身的反复性和决不待时性,使得其性质迥异于普通民事、刑事案件。官员们在审理水案时既不敢拖延以免事态扩大;又难以遏制其旷日持久的纠纷蔓延,只能参考地方的传统惯例、既往判决、各村纳粮多少、争议水源出处等因素综合判定。但这依然是治标不治本的策略,真正为中央所认可的水案治理模式,并非通过狭义的法律手段,而是使用行政手段,去修渠建闸,帮助民间设立规约和组织,使其对水的利用高效化、合理化,尽可能减少纠纷。

Study on Water Case Management in Qing Dynasty: Centering on Ganqing Water Conservancy License Monument

The water case license tablets in Ganqing area in the Qing Dynasty had important legal and historical values,and presented two features at the same time, namely, representing the official laws and rules and continuing and respecting folk practices. Water cases had special social and historical backgrounds, coupled with their own repeatability and never waiting for the time, which made them different from ordinary civil and criminal cases. Officials in the water case dared not delay for fear of escalation, and it was difficult to contain the spread of its protracted disputes, so they could only refer to the local traditional practices, previous judgments, the amount of grain paid by each village, the source of disputed water and other factors to make a comprehensive judgment. However, as a palliative strategy, the water case management mode truly recognized by the central government was not through legal means in a narrow sense, but through administrative means, to build canals and sluices, to help the folk to set up regulations and organizations, to make their use of water efficient and rationalized, and to reduce disputes as much as possible.