How to understand the role of traditional culture in the rule of law?

The positive influence of China's traditional legal culture on the overall rule of law.

First, academically, China's traditional legal culture provides resources for China's legal academic research. The implementation of the strategy of governing the country according to law needs academic research of law to provide theoretical support for practice.

The academic research of law should be rooted in China's traditional legal culture and learn from western modern laws, so as to establish a modern theory of rule of law suitable for China and provide a theoretical basis for the practice of governing the country according to law.

There are many legal thoughts in China's traditional culture that are worth digging and learning from. Studying China's traditional legal culture can provide valuable theoretical materials for contemporary China's legal academic research.

Secondly, the combination of "rule by virtue" and "rule by law" in China's traditional legal culture is worth learning. Taking Confucianism as an example, Confucian legal thoughts mainly include the principles of "morality as the main factor and punishment as the auxiliary factor", "punishment should be taught clearly" and "courtesy should be applied and punishment should be punished". This kind of legal thought of Confucianism mainly emphasizes the role of morality and education, takes law as an auxiliary means, advocates "rule by courtesy", "rule by virtue" and "rule by man", and realizes the confluence of Confucianism and law through the high similarity between morality and law.

Under the special conditions of traditional society, this kind of legal thought of Confucianism is the realistic need of governing feudal countries and the necessity of historical development. Confucian legal thought emphasizes that "rule by courtesy", "rule by virtue" and "rule by man" are higher than the rule by law, which is not in line with the modern concept of rule by law. However, from another perspective, Confucian legal thought makes good use of and unifies the rule by virtue and the rule by law, which is of guiding significance for today's comprehensive rule of law.

Thirdly, the positive thoughts in China's traditional legal culture can provide a useful supplement for the modern concept of rule of law. China's traditional legal culture contains many excellent ideas of the rule of law. As early as the Spring and Autumn Period, Zheng produced the Book of Punishment, which reflected the idea that the law must be enforced. Han Feizi, the founder of Legalism, stressed that "if the law is clear, morality can't be humiliated, the strong can't invade the weak, and the public can't explode."

This shows that the law must have the attributes of equality and justice. Another example is that "the testimony is correct" and the rule of law will not be chaotic. "Emphasize the value of the rule of law; And "punishment is clear, civil service" is to explain the purpose of punishment. These traditional legal cultures have a distinctive social color of China, which can provide local resources for today's socialist concept of rule of law.

The negative influence of China's traditional culture on the overall rule of law.

First, China's traditional feudal ideology of hierarchy and privilege has a negative impact on the overall rule of law. In the traditional feudal society, hierarchical thought was deeply rooted and hierarchical. The concept of "Jun Jun, minister, father and son" is deeply rooted in people's hearts, and people's freedom and rights are in a state of being ignored or even ruthlessly violated, which still has a bad influence on the establishment of the socialist concept of rule of law.

In order to maintain its rule, the feudal ruling class used coercive means to make the people accept hierarchical arrangements, and the people were not equal to the privileged class. The ruling class maintains a strict hierarchical system by means of "rule by man" and with the guarantee of national compulsion, with the aim of maintaining the ruling position of the ruling class for a long time, which is completely contrary to the equality concept of the rule of law.

Second, the idea of rule by man in China's traditional legal culture has a negative impact on the overall rule of law. Confucianism with "benevolence" as the core is the mainstream of China's traditional feudal society, and Bai has deeply influenced the history of China since its birth. Confucianism advocates "rule by virtue" and "rule by man", emphasizing rule by courtesy in the relationship between courtesy and law, rule by virtue in the relationship between virtue and law, and rule by man in the relationship between man and law.

After thousands of years of precipitation and solidification, it has had an indelible impact on China society, including the idea of "rule by man", the idea of duty, the idea of hierarchical privilege, the idea of respecting the inferior and being orderly, and the idea of fearing the law and being disgusted with litigation.

It can be predicted that these concepts will still exist in the legal concepts of China society for a long time, and will be preserved and continued in a form that is difficult to find and change, especially in areas with backward economy and culture and blocked information. This will greatly hinder the establishment of a new concept of the rule of law.

On the other hand, China's social consciousness of democracy, equality and individual rights has long been suppressed by Confucian views on human nature and world theory. Confucianism believes that human nature is good and people should cultivate themselves every day. One must have good morality and sacrifice one's own interests for the sake of collective interests. Confucianism also believes that "filial piety of all virtues comes first", and individuals must absolutely obey their parents. "The world" is a "everyone", and the ruler is the parents of this "everyone". All subjects must obey the ruler absolutely.

Third, China's traditional legal culture is characterized by its strong independence and closeness. China's traditional legal culture is almost isolated in thousands of years of traditional society, which is quite different from the western legal system. Confucianism pays more attention to the overall interests, and the individual's pursuit of interests is not valued and encouraged.

Confucian scholars have always advocated the spirit of holism. They actively participated in social activities and political practice by "nourishing qi and calming down", gained political power by entering the DPRK as an official, and then brought their esteemed ideas into the practice of governing the country and safeguarding the country, and finally formed a complete system of gains and losses.

Under the control of this order system, economy, politics, culture and law cooperate with each other, forming a stable and solid patriarchal clan system in China traditional society. Thousands of years of feudal society in China continued this very stable and closed legal system, which made some traditional legal and cultural thinking concepts deeply rooted in people's hearts. The strong closeness of China's legal system has hindered the establishment of the socialist concept of rule of law in China to some extent.

The legal tradition formed for thousands of years has collided with the modern concept of rule of law, and its inertia is hard to change. Up to now, there are still some thinking concepts in traditional legal culture that are deeply rooted in people's hearts but are contrary to the socialist concept of rule of law, which has adversely affected China's establishment of the socialist concept of rule of law and the promotion of the strategy of governing the country according to law in an all-round way.

Extended data

After thousands of years of precipitation, China's traditional legal culture has become a whole, with the following distinctive features:

First, China's traditional legal culture attaches importance to the role of "rule by virtue". The basic starting point of the concept of rule of law is to restrain people's behavior with a set of formed legal system. In traditional society, "virtue" is the most basic principle to restrain and regulate people's words and deeds, and following the traditional norms of "virtue" is the basis for the emergence and development of the rule of law. Confucianism especially advocates virtue, regards benevolence, loyalty and filial piety as the most fundamental moral requirements of individuals, and regards "three cardinal principles and five permanents" as the basic ethical standards of society.

Confucianism values etiquette over law, and emphasizes the rule of etiquette in the relationship between etiquette and law, emphasizing that rulers should first improve their moral cultivation and behave appropriately. Under the guidance of the traditional thought of "ruling the country by virtue", there is no clear distinction between law and moral norms and administrative orders. Morality is higher than law, and law is attached to morality, which limits the power of self-development of law and becomes a vassal of feudal ethical system and administrative orders.

Second, China's traditional legal culture attaches importance to collectivity and obligation. China's traditional society is dominated by self-sufficient natural economy, and small-scale peasant families are the cells of society. In this small family, a relatively independent hierarchical structure is formed by generations.

Numerous patriarchal clan families formed a "big family", and the superposition of patriarchal clan hierarchy formed the framework of China's ancient regime. Imperial power is the center of state power and the "parent" in the "largest family structure", which has supreme status.

Looking at all kinds of thoughts in traditional culture, all the thoughts and theories that support this typical autocratic rule, whether it is the state centralization of legalists who emphasize "power" and "skill" to govern the people, or the Confucian rule of virtue which emphasizes "benevolence" and "filial piety" to govern the world, are highly favored by the ruling class, and even make these thoughts become the thoughts and concepts that the whole society must agree with by means of state coercion.

In this case, "state" and "home" departmentalism not only have a solid economic foundation, but also have the space for survival and development guaranteed by state coercion. Emphasizing the collective concept of "country" and "home" requires everyone to put "country" and "home" first, fulfill personal obligations, and personal interests are subordinate to collective interests.

Thirdly, the French traditional culture in China grew up under the absolute monarchy. China's traditional legal culture emphasizes the distinction between personal status and rank. "Jun breaks the law and Shu Ren commits the same crime" only exists in the ideal, but what is actually implemented is a strict hierarchical system of "doctors don't punish, Shu Ren doesn't behave", and the concept of "everyone is equal before the law" is impossible to accept.

From the point of view of the ruling class, the most fundamental purpose of establishing a hierarchy with the legal system is its own ruling position. It is no exaggeration to say that "China's traditional legal culture is a tool culture" and China's traditional law is a tool for feudal monarchs to rule the people.