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May 7th 1 1:4 1 The fate of China's traditional legal culture in modern society has become a hot topic of concern and debate for many times by China cultural people or scholars in the past century. It can be said that the contradiction between the urgency of China's modernization task and the arduousness of its progress in the past century is to solve the fate of China's traditional culture in the present era. China's traditional legal culture, as the dominant way of existence accumulated by the history of a specific nation, embodies the typical spirit of agricultural civilization, which is incompatible with the scientific, democratic and rational spirit of modern industrial civilization. Because of this, when the modern industrial civilization based on market economy approaches and impacts our ancient agricultural civilization, our traditional legal culture is doomed to perish and the prospect is worrying. It cannot support a modern industrial civilization as successfully as it supports a traditional industrial civilization, but must be open to a scientific, democratic and rational cultural spirit with technical rationality and humanistic spirit as its connotation. This is an indisputable fact. Therefore, if China's traditional legal culture is to be transformed from the hindering force of modernization to the internal motive force of modernization, it must undergo profound and fundamental reform or reconstruction. However, what methods should be taken to transform or rebuild the traditional legal culture in China? Fundamentally speaking, there are two ways: one is the transformation of internal creativity; The second is external critical reconstruction. We believe that when a culture contains the elements of a new culture and constitutes the necessary tension of the elements of a new culture, it will take the road of internal creative transformation; When a culture is not necessarily related to the new era and lacks internal necessary tension or internal driving force, it can only adopt the way of external critical reconstruction [1] For the transformation mode of modernization, some scholars also put forward endogenous modernization and exogenous modernization. "Endogenous modernization" is a road of social change formed through the internal innovation of society's own strength, which has gone through a long process. It is also called endogenous change, and external influence is in a secondary position. Under the influence of the international environment, the external impact of society leads to internal ideological and political changes, which in turn promotes economic changes. Also known as exogenous change, its internal innovation is in a secondary position. [2] For more than 100 years, the transformation and regeneration of China traditional culture has always existed. The most extreme cultural conservatives deny the necessity of the transformation of China's traditional culture, and they take an extreme attitude to refuse the transformation and change, such as the slogan of "Learning from the Middle School as the Body and Learning from the West for Use" during the Westernization Movement,1the "Declaration on the Construction of China Culture" by the history professor in 1930s, and so on. Among them, Liang Shuming's attitude is the most typical. He believes that China culture will not produce Western-style science and democracy from itself, and the democratic system is not suitable for China society. Therefore, only by reviving China's traditional culture and realizing the ethical structure of agricultural society through rural construction can we find a way out for China society. The most extreme cultural radicalism, such as total westernization, denies the possibility of traditional cultural transformation in China. Between these two poles, moderate cultural conservatism, also known as the third period of Confucianism, advocates that China's traditional culture should take the road of internal creative transformation. Most of them admit that China's modernization needs science and kindred spirits, and China's traditional culture lacks scientific and democratic dimensions. However, they believe that China's culture does not lack the seeds and embryos of democracy and science. Therefore, they think that the traditional culture of China should be creatively transformed internally. That is, the moral subject of Confucianism is transformed into the intellectual subject (science) and the political subject (democracy) that support industrial civilization. Tang Junyi's "returning to the roots to create new ideas", "returning to the roots to feed back" and "meeting challenges", Mou Zongsan's "suppression of conscience", Du Weiming's "revival of Confucianism" and Yu-sheng Lin's "creative transformation" all express this orientation. Moderate cultural radicalism emphasizes that China's traditional culture must take the road of external criticism and reconstruction. If only emotionally, we are eager for the cultural orientation of Neo-Confucianism to become a social reality. However, the conscious cultural situation formed by the intersection of Confucianism and Taoism did not develop the concept of separation between man and nature like Greek rationality, nor did it establish the understanding and belief of separation between man and god like Hebrew spirit. Rational concept and religious consciousness have always been lacking in China culture. Therefore, in China's traditional cultural model, the cultural level not only failed to construct the dimension of transcending and criticizing the daily life world and its own culture, but showed its conscious recognition and affirmation of the daily life world and its own culture everywhere. Therefore, China culture has formed an ultra-stable structure internally, and it is impossible to creatively transform a new civilization spirit completely different from the agricultural civilization it supports, that is to say, it is impossible for China's traditional legal culture to take the road of internal creative transformation. In this regard, Hao Tiechuan pointed out that "Confucianism is generally contrary to the legal system and the spirit of the rule of law in contemporary China. Without breaking the old and establishing the new and denying the basic values of Confucianism, it is difficult for the legal spirit of contemporary China to be recognized by our whole nation. " He even proposed to "be alert to the legal concept of modern society after the use of Confucian legal culture" and "the basic way to modernize China's legal system is to creatively transplant western laws" [3]

Specific analysis, China traditional legal culture to achieve internal creative transformation of the problem lies in:

First of all, China is a country with a long tradition of ruling by men. There are not many ready-made legal and cultural resources to inherit in history, and the traditional legal foundation is very lacking or missing. This is the fundamental problem of the creative transformation of traditional legal culture. The tradition of legal culture in western countries can be traced back to ancient Greece and Rome, and the origin of modern rule of law is realized through the revival and spontaneous evolution of Roman law. Therefore, in the process of stepping into the rule of law, western nations and countries have basically not encountered resistance from their own traditional culture. On the contrary, because their traditional culture and legal resources contain reasonable contents that modern rule of law can accommodate, they provide good legal and cultural support for the establishment and realization of capitalist legal system. China has long been a trinity of natural economy, patriarchal autocracy and Confucian culture of rule by man, and has always lacked the tradition of rule of law and its corresponding legal and cultural atmosphere. Even if legalists put forward the idea of "rule of law", it is far from the real "rule of law". Law is only a "family law" to safeguard the emperor's family, not a "world law". Therefore, in the construction of modern China, it is quite difficult to realize the transformation, reconstruction or regeneration of traditional legal culture. With the changes of the times, the traditional legal culture based on natural economy, patriarchal autocracy and Confucian culture has lost the value of building a new social order in the overall sense of social structure, but as a tradition, it still has its power that cannot be underestimated. When China transforms from a traditional society ruled by man to a modern society ruled by law and constructs a new social order through the modern legal system, it will still be stubbornly displayed with its inherent inertia, which will impact and interfere with the emerging legal order, which is one of our difficult problems.

The second problem of China's modernization of the rule of law is that the history of China's commodity market economy and democratic political construction is not long, and it lacks the soil for the growth of the rule of law. Small-scale peasant economy and authoritarian politics are the products of the development of commodity economy and democratic politics, and the rule of law cannot grow in the soil of small-scale peasant economy and authoritarian politics. In China's long-term revolution and construction, victory mainly depends on policies and administrative orders. After the founding of the People's Republic of China, influenced by Soviet jurisprudence, we basically relied on the integration of politics, policies and morality, rather than relying on the law to establish a new social order; The policy is in the position of giving priority to development, but the law has not been given due attention, and even received a cold shoulder and entered the cold palace. In this context, China's traditional mode of rule by man has not been properly liquidated, but has been transformed, survived and strengthened. It was not until the Third Plenary Session of the Eleventh Central Committee began to reform the rigid economic and political system that the law ushered in its own spring. However, China's commodity economy and democratic politics started late. In a country with a vast territory, a large population and extremely unbalanced economic, political and cultural development, it is bound to be extremely painful and difficult to re-establish a new social control framework.

Third, the difficulty of the modernization of the rule of law lies in the challenge of the western legal culture system. We lack enough experience and ability to deal with and build. In today's society, globalization and the rule of law construction in China are part of the whole process of the rule of law in the world, and taking the road of rule of law has become an irreversible trend in the development of human civilization. In the whole process of the rule of law in the world, the western legal system is in the forefront, and its good demonstration effect is imitated by all countries and nations. In recent years, we boldly draw lessons from the advanced legislative experience of western countries, and have successively formulated and promulgated a series of basic laws and special laws to regulate the market order, which has eased the situation that China has long been unable to follow, and its historical achievements are undeniable. However, while vigorously transplanting and introducing the western legal technology system, we lack the ability to respond and construct problems that are both rich in national characteristics and conducive to the operation and realization of the law, so that in the process of large-scale legislation in China in recent years, although laws and regulations with modern significance have been formulated in batches, they are faced with the great blow and solution of the traditional legal culture that people are greater than the law, power is greater than the law, and emotion is greater than the law, and the construction of the rule of law is difficult. Therefore, China's traditional legal culture develops according to its own logic, and will not be transformed into scientific democracy. However, China's traditional legal culture is inseparable from science and democracy, which does not mean that China society does not need science and democracy. China society must move forward and embrace industrial civilization. Therefore, the conscious cultural spirit with scientific rationality and humanistic spirit as the core must be used to reshape the culture of people in China and China. In this process of modernization, China's traditional culture must bravely choose the road of external criticism and reconstruction. On this issue, we should not succumb to the stubbornness and romance of moral standards, but should adhere to the calmness and rationality of historical standards. We must sort out and liquidate the traditional legal culture of China from the overall and fundamental spirit, and we must not let the dross of the traditional legal culture become our fetters and fetters. We should actively adapt and accept the new culture of industrial civilization under the guidance of scientific and technological rationality and humanistic spirit, and rebuild the vitality of our own culture in this adaptation and acceptance. Of course, our criticism and liquidation of traditional legal culture does not mean that we hold a completely negative attitude towards China's traditional culture. On the contrary, there is no doubt that many factors in China's traditional culture can be integrated into the new culture of China society as positive factors of China's modernization. However, it must be noted that this is a kind of cultural integration, which is to integrate the traditional legal culture of China into the spirit of industrial civilization marked by scientific and technological rationality and humanistic spirit, instead of integrating some cultural factors of industrial civilization into the traditional Ga culture of China as a whole. Otherwise, we will fall into the old model of Westernization School, and the transformation of China's traditional legal culture will become a meaningless move.

To realize the creative and critical reconstruction of China's traditional legal culture, we must choose the following goals and paths.

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