Abstract of the paper? Legal culture is an objective reflection of legal practice. Due to the different historical conditions and material production methods between China and the West, the legal practice is also different, so different legal cultures have emerged. In the inevitable development trend of cultural globalization, China's legal culture and western legal culture constantly conflict and blend. By analyzing the differences between Chinese and western legal cultures, this paper expounds the different characteristics of Chinese and western legal cultures from three aspects: legal norms, legal academic traditions and legal spirit, so as to promote the exchange and development of Chinese and western legal cultures.
Paper keywords? : the standard rule of law of legal culture law
Legal culture has many meanings. Generally speaking, legal culture refers to the legal system, legal facilities and people's attitudes, values, beliefs, psychology, feelings and theoretical theories on legal phenomena based on certain social and material conditions. Due to the different historical background and social development, there are great differences between China and the West in politics, economy and culture, so Chinese and Western legal cultures have different characteristics.
First of all, the legal standards are different.
One of the differences between Chinese and western legal cultures is the different legal standards. Traditional laws in China are based on groups, while western laws are based on individuals. What was the most basic unit of ancient society, regardless of the East or the West? A collection of individuals? We call this group-centered society a group society.
As far as the standard of law is concerned, the ancient law in China was the tribal group standard law, which gradually evolved into the clan group standard law in the later period. Under the social, natural and economic conditions in China, the laws of China were formed along the development track of clan system. After the Spring and Autumn Period and the Warring States Period, the patriarchal clan system ruled by blood was broken, and Confucianism and Legalism had the greatest influence on the establishment of a new political system. First of all, Confucian patriarchal clan system? Loyalty? With what? Filial piety? The interpretation of the relationship between the two basic principles makes up for the vacancy of the separation of patriarchal clan system and political state. However, the legalists' nationalist political and legal view is based on the state, and its theory conflicts with the traditional clan society in China, and finally fails. Confucianism absorbed the legalist idea of national standard and founded the theory of coexistence of family standard and national standard. It can be seen that the traditional legal standard in China is a group-based road from clan to clan, and then to the unity of state and family. Moreover, from the Han Dynasty, China's traditional legal standard emphasized that the national standard was superior to the family standard. Late Qing dynasty? Reform the law? Later, with the increasing influence of modern western legal culture, the influence of family system gradually withdrew from the stage of national law. National standards are gradually strengthened according to the needs of social development. Due to the influence of social, historical and cultural traditions, the group standard was deeply reflected in the later laws. The essence of group-based law is duty-based law. This kind of legal consciousness embodies the law that protects the interests of rulers from infringement, while the personal interests of citizens are restricted. As a legal tradition in China, the group standard comes from a specific natural and social environment. It adapts to the needs of China society and balances the development of society. Wigmore, a world-famous comparative jurist, said: China people, as a nation, can survive tenaciously, largely thanks to their powerful clan and family organization. ?
In the history of western law, ancient Roman law passed Seville? The reform in Talia changed from clan law to family law, and with the development of economy and society, a legal system based on individuals was established. Roman law based on clan aims to safeguard clan interests. With the disintegration of the Roman clan, the clan standard in Roman law also disintegrated. As a product of agricultural Roman society, family law filled this gap, which was manifested in male-centered patriarchy and patriarchy. Rome has been expanding abroad. Due to the change of social nature, the family-based legal system has replaced the family-based law, which is manifested in the emergence and development of Roman civil law. What is its significance? Right? Personal? Its great contribution to mankind lies in its liberation of individuals from the authority of ancient society. ? Roman individualism legal view is the ideological source of modern western legal individualism. After the founding of the Germans, Germanic law was based on clan groups, and its institutional law was guided by God's will, that is, God's standard. Renaissance advocated the anti-theocratic personal standard law, and criticized the legal thought of theocratic standard through the classical natural law theory. Human rights began to replace theocracy as the basis of natural law. Thinkers believe that human rights are the basic rights of human beings, which are innate, not endowed by God and inalienable. This idea has been greatly developed in the western personal standard law. In essence, the individual-based law is the right-based law, which pays attention to the protection of individual rights and emphasizes individual interests.
Second, the academic tradition of law is different.
As a summary of people's experience and rationality in law, law presents different types. What is the traditional legal scholarship in China? Law? Instead of. Law? . China's laws only appear as statutory laws formulated and recognized by the state, and there is no legal phenomenon supported by independent jurists with theories and precedents from a rational perspective. Law in the modern sense was introduced from the west in the late Qing Dynasty. The traditional jurisprudence in China is to interpret and annotate the written law, that is? Law? Instead of exploring theory. China's legal tradition lacks legal theories and systems created by jurists who are not bound by positive laws. The fundamental feature of jurisprudence is to explain the text and logic of written law without discussing academic theory, lacking the situation of a hundred schools of thought contending and hundred schools of thought, showing obvious bias. Surgery? Light? Study? The characteristics of. Under the feudal system, autocratic imperial power and centralization gradually went to extremes, which one did not exist? Law? Conditions for academic development. China's legal tradition lacks the connotation of universal justice and individual rights and the role of logic in the construction of legal knowledge system.
The formation of jurisprudence needs many social, cultural, political and economic conditions. First of all, the legal concepts of justice and individual rights are common in society, while the traditional legal concepts in China are centered on order, obligation and control. In addition, there must be real academic freedom. During thousands of years of feudal autocracy in China, real freedom of thought and speech hardly existed. On the political level, we should have a democratic political background. Because democracy and the rule of law are inseparable, authoritarian society will not attach importance to legal scholarship, and legal scholarship will only become an auxiliary tool to maintain the ruling order. On the economic level, the law requires a highly developed commodity economy, because democratic politics is a political form that adapts to commodity economy. Without a highly developed commodity economy, there will be no highly developed democratic politics. Under the condition of traditional small-scale peasant economy in China, it is difficult to develop the law.
Western jurisprudence is very developed, and many legal schools and famous scholars have formed since Roman law. For example, the modern classical natural law school, whose representatives are Grotius, Montesquieu, Rousseau and others; Positivism school of law, represented by Austin; Pure school of law, represented by kelsen, and so on. Western jurisprudence covers a wide range and has profound theories. In the history of western civilization, influenced by commodity economy and democratic politics, the western legal concept centered on justice and rights, which promoted the tradition and development of law, and the tradition of western academic freedom and academic independence also promoted and guaranteed the development and progress of law. In the eyes of western jurists, law is not only a tool to control society, but also closely related to social development and the behavior of social subjects. Different from China's traditional jurisprudence, western jurisprudence is extremely critical, including the criticism of the system and the criticism of jurisprudence itself. In the criticism, the social system has been improved and the legal theory has been further developed. This constructive criticism has played a positive role in promoting the rule of law in the west. Different schools of law have different influences on the development of law. In the words of western scholars, in the past 2000 years, it created a set of rules to regulate behavior, which largely protected individual life, freedom and property and enabled people to live in harmony.