On the Rule of Law in Legal Concepts

For a long time, many scholars believe that the modern legal system in China has not been established for a long time and has not formed its own legal concept. In addition, we are building a socialist market economy, and the relevant legal system is still immature. They advocate that the government should use the coercive power of the state to establish a modern legal system as soon as possible, so as to make it in line with international standards as soon as possible. However, after years of practice, this almost perfect legal system made by transplanting advanced legal system has been found by scholars not to be favored by the broad masses of the people, but abandoned by the broad masses of the people. Therefore, scholars realize that the establishment of a legal system suitable for the broad masses of the people must be based on the local conditions and truly proceed from the actual situation in China. Therefore, more and more scholars begin to pay attention to the study of local legal concepts and legal culture.

The Rule of Law and Its Local Resources written by Professor Zhu Suli is one of the outstanding works in the literature collection of the Legal Culture Research Center. Mr. Zhao Xiaoli thinks: "Su Li's most important contribution in this collection is to reflect on and challenge the prevailing modernization plan of legal system construction at that time." The book is divided into three parts, respectively, from the political reform and the rule of law, judicial research and legal research standardization of local resources in-depth study. The author thinks that the first two articles are better written. From a very simple case or film, the author leads to the problems existing in the construction of the rule of law in China, and further puts forward the causes of these problems, as well as how to solve these problems, whether the existing problems can be solved by existing laws, and whether legal concepts and legal culture can be one of the ways to solve the problems. This book studies the problems existing in the rule of law in China from various angles of sociology. The author puts forward some views on the present situation of legal concepts mentioned in the book, the consequences of the conflict between legal concepts and formal laws, and the combination of legal concepts and the rule of law.

First, the status quo of legal concepts In the book "The Rule of Law and Its Local Resources", Professor Su Li repeatedly studied local resources. The so-called local resources, I think, are the legal culture, legal concept and legal tradition that China has formed for a long time. These legal cultures have been criticized and abandoned to varying degrees in the formulation of various laws in China, but this cultural concept has not been abandoned by the broad masses of the people, but has been completely inherited and has been used ever since. On the one hand, it is criticized and abandoned by some legal scholars, on the other hand, it is loved and passed down by ordinary people, so should the concept of law exist? The author also begins with the story of Qiu Ju. Qiu Ju didn't bother to report what it was for. She is just a village woman. In order to get a "statement", she asked her superiors to criticize the village head where she kicked her wrong husband, and asked the village head to admit her mistake. The existing law gave her the result of giving the village head public security punishment, arrest and administrative detention 15 days. Is this what Qiu Ju wants? Qiu Ju doesn't think it's wrong for the village chief to kick her husband, because her husband called the village chief "childless", which caused more harm to the village chief than some physical injuries. However, according to Qiu Ju's traditional understanding, she thinks it is impossible for the village chief to kick her husband's nakedness, because this may lead to her husband's "childless". From this point of view, Qiu Ju's definition of whether the village head is guilty is which part of the husband the village head kicked, not the degree of injury stipulated by the formal law. The identification of the constitution of crime by the people and the law may lead to the invalidation of the justice law that the people want, and the justice given by the law is not what the people want.

The book also talks about a very meaningful issue, which is the traditional view that China people are "tired of litigation" or "ashamed of litigation". As we all know, China's traditional view is that "harmony is the most important thing" and "more things are better than less things". The traditional patriarchal concept makes people take a very gentle attitude towards the law, but this does not mean that people will not act according to the law. Traditional legal concepts have been formed, and people have become accustomed to using traditional legal concepts to restrain themselves and others. New legal concepts are constantly formed and deeply rooted in people's hearts, but it takes a long time. And these new legal concepts must be passed down from those concepts that have been deeply rooted in the hearts of the people, and there can be no mistakes. However, the existing legal concepts are mostly transplanted from western countries, and these laws are incompatible with China's traditional legal concepts in many aspects, and may even conflict. China law encourages people to settle disputes through litigation or arbitration. It is true that litigation and arbitration can bring justice to the people to a certain extent, but those people are not familiar with it or even understand it at all. Maybe they don't feel the need to understand the legal system that is far away from their daily life and can give them the benefits and justice they want? It can be seen that Qiu Ju is eager to get justice through litigation, but what she finally gets is an extremely embarrassing situation. In a small mountain village in the northwest, people basically live in harmony and help each other, which is a good tradition formed by most mountain villages in China for hundreds of years. For example, after Qiuju's husband had a conflict with the village head, Qiuju got help from the village head and villagers when she gave birth to a child. However, Qiu Ju hoped to get a "statement" through litigation, but sent the village chief who had helped her to prison. In the eyes of villagers and even her family, Qiu Ju is "too much" and "too inhuman". For some time, her relationship with everyone in the village has become cold, and she may even be spurned by the villagers and may never be understood by the villagers. The old days of living in harmony and helping each other are gone forever. Because the new legal concept she brought destroyed the traditional legal concept that restricted the whole village. Today, how many people like Qiu Ju go to all levels to complain, and the painful lesson makes a stubborn woman like her have to give in. Faced with such a legal system, how many people have the confidence to appeal?

Second, the consequences of the conflict between the legal concept and the formal law When the traditional legal concept conflicts with the current formal law, it can be clearly found that people often choose the former and thus choose to evade the law. Professor Su Li introduced an example of reconciliation of rape cases, which made me think that in the face of such an insecure and unjust legal system, in order to minimize the loss of the victims, it is not necessary to go through litigation, and perhaps reconciliation is more reasonable. If the victim in this example must have Qiu Ju's stubborn temper, she must take the man to prison. What did she get? In relatively backward rural areas, a raped woman is equivalent to losing the most important chastity of women, and she may be looked down upon by people, and it is more likely that she will never get married. If the woman chooses to reconcile with the man, she can not only get some compensation from the man's family to comfort her and her family's mental trauma after being raped, but also marry the man she likes (even the man who raped her) to avoid the torture of loneliness all her life. From this perspective, there is nothing wrong with personal reconciliation, and the current law must send the man to prison. Not only can the woman not get compensation from the man, but she may also be separated from him forever and be lonely all her life. Is this only for women? Are they really ignorant of the law? I wonder if rapists will be punished by criminal law or imprisoned? The author agrees with Professor Zhu. They are aware of the above situation, but instead of the above results, it is better to choose a more favorable way to solve the dispute, regardless of the laws that can give them justice but are far away from their lives.

Third, the combination of legal concepts and the rule of law Some scholars always emphasize that today's society is a market economy society and a modern society. Those outdated legal concepts have long been out of date and are not suitable for the development of modern society and should be abandoned, but we have been exploring ways to develop market economy. In the book Reform, Rule of Law and Local Resources, the author gives two examples: First, the household contract responsibility system in rural reform in China has many similarities with the long-standing agricultural economic system of one household in China; Second, the successful factor of the sustained and rapid development of Chinese township enterprises in southern Jiangsu is the community-run enterprises that appeared before the commune system. This reminds me that the monogamy stipulated in today's marriage law can be quickly recognized and recognized by the people all over the country because the traditional marriage legal culture in China is also monogamous. China has more than 80% rural population. Rural people are most influenced by traditional legal concepts, and the task of rural reform is even more arduous. However, the government and scholars often look abroad, hoping to seek experience from foreign successful experiences, but often ignore the excellent traditional culture of our ancestors for thousands of years. Perhaps it is "other people's food is always better than their own", because they already have good things, but they have to spend a lot of financial and material resources to seek other people's good things and abandon their own things. This idea is very wrong. Of course, the author does not object to learning from other people's excellent and successful experience, but I think that in the construction of the rule of law and various reforms in China, we should spend more time studying our local resources, traditional culture and ideas, instead of simply transplanting other people's things without in-depth investigation and understanding, and then meaningfully fooling with the phrase "It conforms to China's national conditions ...". On the contrary, don't be afraid of others' jokes about things that truly conform to China's national conditions "with China characteristics ...".

Here, I take two sentences that I agree with very much as the conclusion of this article: "Even the common laws or practices in some western countries, even if they are in line with the laws and systems of market economy to reduce transaction costs in theory, need more coercive power to be implemented if they are not in harmony with local traditional habits. This shows the importance of establishing an effective and efficient socialist rule of law in China, relying on, learning from and using local traditions and practices. " (See page 13 of this book) "The road to the rule of law in China must attach importance to the utilization of local resources in China and the tradition and reality of legal culture in China." (See page 6 of this book)