在基层民事纠纷解决过程中,民间习惯和国家法律的矛盾是传统中国很多朝代的法官必须面临的难题,他们常常要解决这对矛盾,以实现裁判合法性与公信力的统一。他们在这一过程中积累了很多经验,这些经验的取得与儒家学说的解释力、社会规则的认识、国家—法官—社会之间意识形态的同一性以及法官的考绩压力等因素有相当的关联。当代中国法官也面临民间习惯与国家法律之间的矛盾,但是他们却有着与传统中国法官大不相同的现实困难,包括国家—法官—社会三者之间意识形态的非同一性、法官知识体系构建的非本土性、司法目的的非现实性以及司法活动的非社会性等四个主要方面。这些困难的解决将是中国司法达致和谐的真正开始。 In the process of settling civil disputes at the grassroots level, the contradictions between folk custom and state law are the problems that many judges in traditional dynasties must face. They often have to resolve these contradictions in order to unify their legitimacy and credibility. They have accumulated a great deal of experience in this process. The acquisition of these experiences is quite related to the explanatory power of Confucianism, the understanding of social rules, the ideological identity between state-judge and society, and the judge’s performance appraisal pressure . Contemporary Chinese judges also face the contradiction between folk custom and national law, but they have very different practical difficulties from the traditional Chinese judges, including the ideological non-identity between the state, the judge and the society, the judicial knowledge system Non-native construction of the judiciary, unrealistic judicial purposes and the non-social aspects of judicial activities. These difficult solutions will be the real beginning of China’s judicial harmony.