自21世纪初被提出以来,潜规则概念就在争议与褒贬不一中扩大着影响。有别于埃里希的活法论,潜规则是指在某一社会阶层或小团体中通行的,以权力和人情世故为中心,对国家法进行便利化操作和私益化运作洗练而成的社会规范形式。历史文化传统的差异导致每个国家和民族都有其建构和理解社会规范的特殊方式,潜规则正是中国和中华民族建构和理解法治和法律的独特方式和国家法在社会中运行的真实状况的独特表征。潜规则作为法律发现、法律实现和秩序维护的重要形式而助益于中国法治的发展。但是,基于自身的锁定效应和真实中国的法治状况,拒斥多于认同才是对潜规则的一个现实的态度。 Since the early 21st century was proposed, the concept of unspoken rules in the controversy and mixed widening influence. Different from Ehrlich’s theory of living law, the unspoken rules refer to the society that is made through the facilitation of operation of state law and the privatization of private activities centered on the power and the human race through a certain social class or small group Standard form. Differences in historical and cultural traditions have led each nation and nation to have its own special way of constructing and understanding social norms. The unspoken rules are exactly the unique ways in which the Chinese and the Chinese nation construct and understand the rule of law and laws, and the true state in which the state law operates in the society Unique characterization The unspoken rules help the development of Chinese rule of law as an important form of law discovery, law realization and order maintenance. However, based on its own lock-in effect and the actual rule of law in China, rejecting more than agreeing is a realistic attitude to the unspoken rules.