Keywords: influence and enlightenment of customary legal system construction
Habit is the national style of a country, so if we ignore national habits and stipulate various laws and regulations, we can't expect administrative perfection. Habit is the origin of a law that exists in any legal culture background, and many rules in the law are directly derived from habit.
First, the influence of habit on British legal system construction.
(A) the background of the influence of habits on individualism
Individualism means that the law applies to a nation, a nation, and everyone in this nation also owns the law, and this law applies to any place where he is. Montesquieu analyzed the causes of Germanic legal individualism in On the Spirit of Law. He believes that environmental factors have influenced the lifestyle of Germans, who like to live separately, which leads to each group having its own living habits and methods to deal with problems. When various groups of Germanic people get together,
(B) the impact of individualism on Britain and its colonies
This Germanic humanism has a far-reaching influence on the development direction of world law. William I of England was originally the Duke of Normandy. After conquering England, he did not instill the original legal system in England, but judged the case by respecting the original customs of the local English, thus effectively alleviating the contradiction with the Anglo-Saxons. Consolidate his rule in England. Later, Henry II continued to pursue individualism in Britain and carried out a series of judicial reforms. He regularly sends commissioners to various places for trial tours. In handling cases, these commissioners mainly relied on Germanic customary law and local customs in addition to the imperial edicts of the king. Any custom and practice that they think is correct and reasonable does not conflict with the king's legislation, which is the recognized basis of judgment. They often gather in Westminster, where the central government is located, to exchange views and recognize each other's judgments. In this way, some cited habits have become common law in the form of case law. In short, most of the "common law" in Britain is based on the acceptance and generalization of national or widely popular habits; British common law has become common law. " Through this measure, the judicial power of the central government was unified and the judicial power of local lords was weakened.
This habit was well implemented in the later British colonial rule. At that time, when Britain ruled Hong Kong, British laws were not directly applicable to the Chinese community, but only when both sides or one side was British, which led to the conclusion that British colonial rule was anthropomorphic. The local Chinese community still invokes the Qing dynasty decrees, only when their laws seriously violate the value of human rights. The British Hong Kong legislature will intervene. This will lead to this phenomenon. With the passage of time, when the local Chinese accepted and recognized the value of English law, they voluntarily gave up the Qing statutes as the basis for the application of the law in the 1970s, and finally evolved from the initial individualism to territorialism. The Laws of the Qing Dynasty are no longer applicable, but some of its provisions, Jennings pointed out, are the function of cooperation, and legal rules cannot promote cooperative action alone. Practice contributes to the operation of democratic system and makes state institutions more coordinated, otherwise friction will occur. This is the benefit of individualism, which is a moderate way to promote judicial unity, which is conducive to maintaining the rule of rulers and promoting social stability. Conducive to economic development. Humanism is like soup cooked with slow fire, and the nutritional value of soup is well preserved. In England and Hong Kong, the good habits of the local people are well preserved. These are conducive to the continued inheritance of local legal culture.
Second, the influence of custom on the legal system construction in Germany.
(A) the influence of savigny Thought on German statute law
In "On the Contemporary Mission of Legislation and Law", savigny stated that he was opposed to German immediately enacting written laws including civil code, criminal code and procedural law. His main point of view is: "law comes from customs and people's beliefs first, and then from the artificial hand in law-work is the reason, and the law is completely immersed in it, quietly diligent ~ ~. Not the arbitrary will of legislators. " Then we can draw the conclusion that the laws of our country should be formed naturally with time. If the legislature makes laws too quickly, it will inevitably lead to insufficient discussion of jurisprudence, thus making the laws not implemented. If the people cannot fully understand its jurisprudence, its implementation will have little effect. Therefore, savigny attaches great importance to the role of customs. In my opinion, this habit is not only a Germanic habit, but also a Roman law habit.
(B) The impact of the suspension of savigny's research methods.
1896, the civil code of the German Empire was enacted, which was implemented in1June+1 year/October. Today, the Federal Republic of Germany still applies the Civil Code. The formulation of the civil code objectively promoted the political unity of the country and the stability of social order, but the promulgation of the civil code did send Roman law and Germanic law into history, and people's textual research is no longer a traditional national habit. But focusing on the research of code theory, how to make the logical structure of the code more perfect can really make the code system more complete. At this moment, I can't help thinking of such a question, savigny's research method, why did the German written law come to an abrupt end? I think there should be the following reasons: First, Germany has great men like Kant, Hegel and Marx, who are most famous for their philosophical theories. Philosophy makes people think, rigorous and logical, and thinks that logical things can improve themselves, so it is the first choice for Germans to formulate a civil code with strict logical system. Second, the political and economic needs at that time. The reunification of Germany has stood the test of blood and fire. The reunification of the Germans was prevented by the power of the church. In addition, countries such as Britain and France do not want a strong Central European country to destroy its original political and economic order. Therefore, the German people hope to formulate a written code as soon as possible to safeguard this hard-won unity, enhance the sense of national unity and realize national rejuvenation. Third, the French Revolution not only washed away the feudal forces in the European continent, but also brought the ideas of freedom, equality and fraternity to other European countries, and also brought the ideas of codification to other countries. So the Germans were naturally influenced by the trend of French codification. But it is difficult to effectively solve practical problems by paying too much attention to the code itself. The code lags behind, and the problems in social life cannot be completely solved. Therefore, the habits and national spirit left over by traditional nationalities will play a certain role at this time.
Third, the influence of habit on Japanese legal system construction.
(A) Enlightenment of Japanese culture
A scholar said that Japanese culture is an onion culture. After peeling off his onion piece by piece, we found that it had no core. The inclusiveness of Japanese culture is indeed worth pondering. When we get to know Japan better, you will find that sumo is still very popular with people, and you will find that Japanese people love football. You will find that Japanese fashion is still charming, and you will find that kimono is so dignified. All these have aroused our understanding of the Japanese legal system.
(B) the embodiment of habit in the modernization of Japanese legal system
The modernization of Japan's legal system began with the closing movement. The success of the closing movement re-established the rule mode of the emperor and laid a very deep foundation for the subsequent centralization. The cabinet headed by Kubo Junyi has implemented a series of centralized policies: (1) abolishing the vassal and setting up a county, and returning the official title; (2) Cancel the status of scholar, agriculture, industry and commerce, adopt a new status and establish a brand-new household registration system; (3) Cultural education, compulsory national education; (4) Implementing the industrialization policy and concentrating national strength on economic construction; (5) in the aspect of legal system construction, translating and copying the French code; Through a series of policies to speed up Japan's modernization, Okubo and others want to further leave Asia and enter Europe, and carry out a deeper reform of Japan. As a result, the reform was too intense and unaccustomed. Okubo was assassinated. The newly appointed Ito Bowen thinks further about this. Reform should not only be vigorous, but also pay attention to habits. To this end, Ito Bowen visited Germany, which is closer to Japan's national conditions, and drew a blueprint for Japan's constitution based on the common law of Prussia, Germany. The emperor is like a human head, the government is like a human heart, the upper and lower houses are like people's right-hand men, and the navy and army are like people's fists. Government departments and judicial departments make up the human body, and people are people's two legs. Based on this, Hirofumi Ito established Japan's constitutional government based on the natural concept of Japanese people's habits, and the Emperor promulgated the Great Japan Constitution in 1889 based on the above ideas. Since then, Japan has formulated a six-law system suitable for Japan's national conditions on the basis of imitating German law, and the modernization of Japanese legal system has basically been completed. For example, there is a provision in the Japanese civil law that "if a false address is chosen because of a specific behavior, its behavior is regarded as an address." The false address system is a system adopted by Japan in combination with its own customs. German civil law does not adopt this principle, because Germany uses multiple addresses, so there is no need to have fake addresses.
Fourthly, the influence of custom on the construction of traditional laws in China.
In traditional China, there are many kinds of grass-roots civil disputes, such as the conclusion and dissolution of marriage and the inheritance of family property. At that time, the rulers imposed heavy penalties on the people, and the civil legal system was underdeveloped. People usually solve civil disputes according to local customs. In local society, this solution is followed by everyone. These habits were seriously concerned by the grassroots officers and their legal assistants at that time. In fact, grassroots officials may not judge cases according to their habits, but they can make judgments according to the laws and regulations at that time. The reason why these local habits are skillfully used by them is mainly because these judgments should be accepted by the local people and conform to the rules of etiquette, so as to achieve the purpose of education.
The superior government spared no effort to collect habits to help standardize its administration. Taking the Qing Dynasty as an example, local customs were compiled into the provincial database through the arrangement of provincial judges and political envoys, and these customs were cited in legal notices to correct bad folk customs at the grassroots level. In addition, the representative practices in various places have been screened and incorporated into the official code of the country. The most famous example: 1775 Article 78, paragraph 5, of the Qing Law stipulates the practice of "inheriting Fannie and Freddie". It stipulates: "If the heir is an only child, but belongs to the same parents and is willing to marry him, he is also allowed to inherit Fannie Mae and Freddie Mac." The order of folk inheritance was clearly revised, which was conducive to social stability and property security at that time. Now, although there is no system of "inheriting the two houses and ancestral halls" in the written law, such a habit is still widespread in rural society. As Liu said, this habit still survives with its tenacious vitality, becomes people's psychological accumulation or ideological expression, and plays a role in social life in the form of recessive culture.
Verb (abbreviation of verb) enlightenment
Through the above analysis, the author thinks that there are two inspirations that should attract our attention.
First, pay attention to the good role of habits in the construction of legal system. From the legal system construction in Britain, Germany and Japan, we can see that respecting habits is not a conservative performance. On the contrary, in the legal reform of various countries, respecting habits can make the legal reform more stable. For a country with written laws, respecting habits is also conducive to overcoming the rigidity and lag of written codes. Su Li pointed out that domestic civil and commercial laws rarely emphasize respect for civil and commercial customs and practices. Of the 2,500 legal documents, none explicitly put forward "according to custom", and only one emphasized relying on commercial customs. On the other hand, the General Principles of the Civil Law clearly stipulates that "if there is no provision in the law, the state policy shall be observed." There are also 2500 statutes, but there are actually 10 15. The answer is no. China's traditional laws have a profound tradition of respecting customs and habits, and China's legal system construction should inherit these beneficial habits and establish a new legal system in line with its national conditions. Only in this way can the people accept the law more easily and the law can be better and more fully implemented.
Second, pay attention to the cultivation of habits. Some people may think that this work is of little significance, because of various reasons such as frequent population movements or inconvenient application of habits. However, I think it is necessary to establish a complete assembly habit. First of all, it should be clear that China people have the traditional concepts of "hometown" and "moving from other places". We can easily find that it is common to borrow money from fellow villagers; There are many cases in which people who work outside the home will return to their hometown after working for many years. Establishing a compilation of habits is helpful for people of the same nationality and place to solve various disputes. Secondly, the compilation of habits is also a valuable asset of China's legal culture. The compilation of habits promotes the theoretical development of jurisprudence and legal history, especially the theory of civil and commercial law, and then draws the conclusion that the formulation of civil and commercial code in China should pay more attention to the habits of the nation. Finally, when collecting habits, all provinces should sum up some of the same living habits and customs.
(This answer comes from the Academic Hall)