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It should be an indisputable fact that the laws of modern China have greatly deviated from those of traditional China in form, content and spirit.

But this is only one si

It should be an indisputable fact that the laws of modern China have greatly deviated from those of traditional China in form, content and spirit.

But this is only one side of the problem, and there are inevitably signs of superficiality and cultural essentialism. From a macro historical point of view, although the legal tradition in China has been interrupted, the connection still exists. We might as well pay attention to the internal relationship between law and politics, from which we can clearly observe the continuity of history. In the early days of Chinese civilization, the law was generally composed of various primitive customs, and politics was mainly embodied through religious etiquette, which was manifested as "witchcraft". Although witches also play the role of law, they are first and foremost political. The relationship between primitive customs and religion or witchcraft can be regarded as the relationship between ancient law and politics in China. In this relationship, witchcraft is decisive and has the power to explain and operate customs, and customs have largely become a tool of witchcraft that embodies political power. This model of ancient society has been inherited and developed, which shows the relationship between punishment and ceremony in Xia, Shang and Zhou Dynasties. The composition of ceremony is more complicated than punishment, but it is closely related to witchcraft. It can be said that the spirit and content of witchcraft have changed in the post-era. Just like witches, ceremony itself is not a strict law, but it has the legal nature in the modern sense only because of the support of punishment. Undeniably, compared with punishment, ceremony is a grand ceremony held by the state, which is politically constitutional. Therefore, the abolition of punishment is based on the choice of ceremony, and the purpose of ceremony and punishment has become the expression of the relationship between law and politics in China in the new period. Since the demise of the Eastern Zhou Dynasty, the relationship between ceremony and punishment has been destroyed. After nearly 500 years of differentiation and combination, the relationship between ritual and punishment was redefined politically in the early Han Dynasty and developed into the Tang law, that is, "ritual is the foundation of politics and religion, and punishment is used for politics and religion." Both of them are still in the morning and autumn, and they need each other. " After more than a thousand years until the end of the Qing Dynasty, the relationship between law and politics was "moral dominating punishment", that is, the moral ceremony embodying political spirit and principles had control over the law serving this kind of politics, and it can also be said that law was a tool of moral politics. Since the late Qing Dynasty, the society has been out of order and the Chinese legal system has disintegrated as a whole, and the relationship between law and traditional moral politics has been violently impacted in content. Law has embarked on the road of positivism and got rid of the control of traditional politics in form. In fact, the law is still the embodiment of the will of the ruling class and the tool of national politics. The practical experience of constitutionalism of successive governments in the Republic of China is the best annotation. It can be seen that the relationship model between law and politics has not changed in essence. Since 1949, the legal system construction in Chinese mainland has experienced ups and downs. During the Cultural Revolution, legal nihilism raged, and the law was completely dissolved and replaced by politics. Even the law in the form of positivism is not tolerated by political dictatorship violence. In the 1980s, the definition of law and the explanation of the relationship between law and politics (policy) in the university law textbooks stipulated by the state clearly blended the legal theory from the former Soviet Union and the essence of the traditional relationship between law and politics in China. This situation is indeed incompatible with the spirit of the times and the inherent trend of daily life, but the theory and viewpoint

The change of mind will still be and must be slow. It can be expected that this pattern of legal and political relations will not change soon, and it has become a reflection of China's historical immanence.

The change of civilization mode caused by legal reform is another obvious evidence of China's historical immanence. On the civilized mode of social management (control) system, China has undergone three major changes since Xia and Shang Dynasties, from "etiquette and music civilization" to "etiquette and law civilization" and then to "rule of law civilization". Every change is closely related to the legal reform and its controversy and the cultural concept of the Chinese nation. From the ignorant "witchcraft culture" to the ritual and music civilization in the Bronze Age, the Chinese nation has taken a big step forward in seeking the mode of social management (control). Unfortunately, the inside story of this change is difficult to know because of the lack of ancient written records. However, the ritual and music civilization originated from witchcraft culture and achieved a qualitative leap on the road of civilization, which is a historical fact and confirmed by many studies.

During the Spring and Autumn Period and the Warring States Period, the ritual and music civilization was in a state of "ritual collapse and bad music" because of various challenges, and the reform of law was the most direct one of various challenges. In ancient China, "punishment" was the main law, and the relatively elegant "ceremony" was a punitive rule. As far as its origin and application object are concerned, it is associated with war, barbarism and barbarians. Therefore, the history books say that "punishment begins with soldiers" and that "punishment is not enough for doctors and courtesy is not enough for Shu Ren". Therefore, in culture, punishment and ritual become the boundary between barbarism and civilization, and the domination of ritual over punishment reflects a cultural concept that civilization controls barbarism. During the Spring and Autumn Period and the Warring States Period, the rise of criminal law changed from the secret law state of "provisional system" to the written law era of "making everyone know", from the penalty of obeying the ceremony to the independent law without the ceremony. Faced with this change, both Confucius and Uncle Xiang made conservative appeals, which caused a historic debate about political reform. Politically and legally, the opinions of Confucius and others reflect the traditional belief of the nobles in the Western Zhou Dynasty, that is, rites and music are an ideal civilization, and the reform is the destruction of this civilization. The law should not be abandoned, but should stay in the penalty state of the Western Zhou Dynasty. Once the law is made public and engraved on the tripod symbolizing the dignity of state dignitaries, the civilized order (written law or "harmonious society") composed of rites and music will be chaotic or even extinct. This kind of worry implies a cultural concept, that is, punishment or law is far from civilization itself, but a tool of civilization, and civilization is an end, an ideal and the essence of human beings. Rites and music were civilized in the Western Zhou Dynasty, but fell behind in the Spring and Autumn Period and the Warring States Period. The internal change of social structure finally made "etiquette and law civilization" become a new civilized mode of traditional China to manage (control) the society from the Western Han Dynasty.

"Civilization of etiquette and law" is a substitute for "civilization of etiquette and music", but it is not a complete revolution. It changed the part of the ritual and music civilization about the superiority and institutionalization of the aristocrats in the Western Zhou Dynasty, and absorbed some thoughts of the Legalists on "rule of law" to replace and enrich the changed part of the ritual and music civilization, but the most fundamental part of the ritual and music civilization, that is, the humanity embodied in the "ceremony" that Confucius insisted on, has been inherited and retained. In China's cultural concept, this is the symbol of advanced and civilized, and it is the core of China's cultural value system. Therefore, some commentators pointed out that "the unity of etiquette and law (civilization)" is the reconstruction of the broken value system of "etiquette and music civilization" by China legal culture since the Spring and Autumn Period. The essence of reconstruction is just like the substitution of ritual and music civilization for witchcraft culture. It is the inheritance and transcendence of the old civilization by the new civilization within the framework of Chinese civilization, and it is the embodiment and evidence of the internal relationship of China history.

It is not difficult to see how long and difficult it will be to form a civilized model of social management (control) from the collapse of etiquette and music civilization to the establishment of etiquette and law civilization, and then to the social agitation of nearly 500 years from the Spring and Autumn Period and the Warring States Period to the early Han Dynasty. This seems to be a universal historical phenomenon: rational Greek civilization and legalized Roman civilization, as well as the formation of the legal system of western market economy (economic model ruled by law). This shows that the longer a civilization model is formed, the larger the space involved (including region, population and social scale) and the more complex the culture involved, the stronger its effectiveness will be. The civilization of etiquette and law has operated effectively in the traditional China society with a vast territory, a large population and complicated relations, at least in the framework and form for nearly two thousand years. This is the history of human civilization.

The miracle. Although it does not adapt to the changed world dominated by the West in modern times and has been criticized by various kinds, it is undeniable that it is the structural embodiment of traditional China society, the essence of splendid China classical civilization and a unique landscape in the world legal and cultural treasure house. Like China society, it was dominated by China's historical immanence, and experienced the changes of fracture and connection again in the transition from tradition to modernity.

Broaden the historical horizon, the legalized East Asian etiquette civilization-Chinese legal system-was in danger of being out of keeping with the society since the Song Dynasty, and the disconnection between the system and society became more and more obvious in the Ming and Qing Dynasties. However, without the intervention of western legal culture, it will be a historical question mark how long the legal system of etiquette China can last. Facing the impact of the West, China had to "reform and amend the law" in the late Qing Dynasty. As usual, this has also caused controversy. On the surface, it used to be a dispute between China people and foreigners, but this time it is a dispute between China people and westerners. In fact, it is still the same historical topic, that is, the continuous contest between civilization and barbarism and its choice. The "school of ethics" in the late Qing Dynasty insisted that China should not give up "ethics (law)", the foundation of the country and the essence of culture for 5,000 years. Facing the change of the situation, "Legalists" believe that it is impossible to adhere to "ethics (law)". In order to enrich Qiang Bing and recover its extraterritorial rights, it is necessary to "reform and amend the law" and transplant Japanese western legal culture.

The end of history is compromise, which not only retains some contents of ethics (law), but also imports western "rule of law civilization" different from China's traditional ethics (law) in a wider range. The substitution of legal civilization for etiquette and law civilization is due to the situation, and this process has not been completed in China. "Ruling the country according to law" is the time expression of this process. Local resources can be regarded as the combination of China's inherent civilization and modern experience, which shows that we should take seriously the continuity of China's legal culture itself. Although this process from modern times led to the disintegration and value fracture of China's legal system as a whole, it did not completely interrupt the historical connection. Not to mention the specific system and concept, in terms of facing the reality (challenge) and tending to civilization, it is still the embodiment of the true spirit of Chinese culture, the civilization selectivity of "ritual and music civilization" in the substitution of "witchcraft culture" and the embodiment of "ritual and law civilization" and "rule of law civilization" in the substitution of "ritual and law civilization". Although due to cultural prejudice and the limitation of the times, the conservative ethics school can't face up to the superiority of western civilization ruled by law, but the jurisprudence school and the history of China since modern times have accepted this superiority in practice. Through this period of history and the change of China's social management (control) civilization mode, it is not difficult to see the power of China culture towards civilization and its historical internal relationship. This kind of strength and connection has been indomitable since ancient times, and is becoming the spiritual resource and historical foundation for building a modern legal civilization with China characteristics.

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The connection between China's modern legal system and traditional legal culture is naturally not limited to the above aspects, but we can also get the same understanding from the aspects of the concept of law, the doctrine of punishment, group thinking and academic style of law. It is worth noting that people have different attitudes towards this objective existence. There is an extreme negation that China's legal cultural tradition has been interrupted in modern changes, and the modern legal system is western in spirit, concept and system, so there is no contact problem; The other, though not denying the objectivity of communication, denies the enthusiasm of communication, and thinks that China's inherent civilization of etiquette and law deviates from the western civilization of rule of law in value, and the legal construction of modern China should strive to get rid of this kind of communication. This is not only wrong, but also useless. Partly because people can't get rid of the historical connection subjectively, and this connection is not completely negative.

It is an appropriate realistic attitude for us to face the world to face up to the historical connection and understand that this connection has objectivity independent of human will. It requires us not to change our objective attitude towards history because of different understanding of the meaning of connection, even if a connection is negative, we should take it seriously. In this way, we can not only effectively prepare for its negativity, but also transfer, reduce, dissolve and even transform its negativity. Otherwise, negativity can be fully realized. For example, the widespread legal concept of penalty in China is obviously closely related to China's legal tradition, which is undoubtedly negative for the establishment of the belief in the rule of law in modern China, but this does not prevent us from analyzing and understanding its causes, influence and distribution with a positive attitude, thus creating conditions for the transformation of legal concepts. In fact, the relationship between China's traditional legal culture and modern legal system is a complex synthesis, and various factors coexist, interweave and mix, which needs careful excavation, guidance and promotion to achieve historical goals.

The 5,000-year legal experience, wisdom and social ideal of the Chinese nation have a certain positive significance for the healthy development of the legal system in modern China, which may be an inspiration or a supplement. From the experience level, the tradition of codified written law, the conciseness of legal language, the humanistic cultivation of judicial personnel, the cost-saving mediation system, the severe sanctions against economic crimes, the habit of keeping promises, the pawn system in property circulation and the national interests in the legal adjustment of foreign trade are not only China's inherent legal culture, but also have the value of excavation and transformation. In the aspect of legal wisdom, although the Chinese nation pays attention to the relationship between law (right) and people (right) from the perspective of rights, it has not developed a systematic legal theory, but this does not mean that the Chinese nation does not have its own thinking on legal issues. It pays attention to human existence from another angle, that is, the relationship between individuals and groups. Professor Tian Haoming's research is very enlightening, so we might as well refer to it. He said: "Western Europe seems to be a development path that chooses individuals as the starting point for the formation of order. Understand order as the sum of protecting the legitimate interests of each individual. The legitimate interests of individuals are called' rights', and the state of full realization of rights is called' law'. Power is the organ to realize this law. The development of its ideology ultimately comes down to the theory of social contract. China, by contrast, is based on the existence of all individuals. No matter how its basic economic units tend to be individualized or decentralized, it has always been regarded as a self-evident truth to require all individuals to take care of the overall situation and live as a member of a harmonious group. First, there is the survival of all, and then there will be the survival of individuals. On behalf of the interests of all, each individual is required to help each other and make concessions to each other. At the same time, it is regarded as an obligation that public power should fulfill to restrain and punish the selfish desire expansion that sometimes occurs in each individual. " Law has always been the core part of public power. The traditional laws of China, which are based on the priority of individual's obligation to the group, may not completely conform to the modern legal principles. Law must be a combination of rights and obligations, and the institutional framework of the rule of law is supported by the dual pillars of rights and obligations. Modern society focuses on rights, but laws in different times have different tasks. Bodenheimer believes that the main task of laws in the pre-capitalist society is to provide security and order for the society, and the priority of obligations is universal. Considering China's size, population, cultural values and political system, legal thinking based on group harmony is a kind of wisdom to solve practical problems, which is also of positive significance to the establishment of an ideal human society.

Every civilization has its own design for an ideal society. Chinese civilization is not only very early, but also has never given up the pursuit of an ideal society. Perhaps the ways and means to pursue an ideal society are different from those in the west, but the essence of ideals should be the same. The ideal of Chinese civilization is to realize a world of great harmony, which, in legal terms, is a world without litigation. China culture believes that morality is the main way and basic power to know and dominate this world, while law has almost no place in this world, which is completely different from the west. The west relies on just laws to achieve equality of rights, while China relies on moral self-discipline to achieve harmony between individuals and groups. Harmony and justice are different, but as ideals of different civilizations, they also give people happiness; Perhaps the content of happiness is different, but I believe that people's feelings about happiness should be similar and interlinked. In this way, the design and pursuit of an ideal society by China culture and its legal culture does not violate the basic tendency of human civilization value, but also conforms to the ultimate goal of a modern society ruled by law to some extent and in some aspects. Therefore, China does not have the social ideal of law like the West, but it also has another kind of thinking about law based on the ideal society, which extends to the realistic legal system and basic legal concepts, and cannot violate the ultimate mission of law given by human beings: order and justice. The reason is not complicated. In the final analysis, law is the order (norm) of human social life relations and the pursuit of justice and ideals. Even though human laws are very different, they are similar in essence, and the laws of different civilizations still have the same or similar functions. This is what the German comparative jurist said: "Every society's laws are faced with the same problems in essence, but different legal systems have different ways to solve these problems, even though the final result is the same". This shows that people can neither ignore the differences of specific legal cultures and their internal relations, nor ignore the similarities and complementarities of different legal cultures based on human nature. Therefore, the reasonable attitude is: we can't and can't cut off the historical connection, and we should try our best to seek the possibility of various connections in the similarities and differences of human culture.

Starting from the future, we should treat history positively and the relationship between history and reality. Within the historical and cultural scope, people have at least three interpretations of the problem due to different observation angles and purposes: original intention, history and modernity. Undoubtedly, every explanation is necessary and reasonable. If we use an understanding to exclude other explanations, especially the original intention to exclude historical and modern explanations, it will reflect a certain demanding attitude towards history and culture. This attitude holds that there is no modern explanation of historical connection. It mainly focuses on historical faults rather than historical experience, and it only seeks a direct correspondence between ancient and modern times. Obviously, this attitude not only deprives people of sympathy for history, but also makes people lose the possibility of seeking historical and cultural resources from contact for the future. The history of civilization tells people that only by holding a sympathetic attitude towards history and a positive attitude towards the future can we open up a road to the future from the thorns of the connection between history and reality and discover human experience that is beneficial to the present and the future. Taking Youyou as an example, only by getting rid of or at least revising the previous thinking and attitude can we change the disadvantages that the legal picture presented to the world by China Institute of Traditional Legal Culture is almost arbitrary, cruel, conservative and outdated. The picture may be true, but it is certainly not the whole truth, nor is it what people need most. We need not only the whole truth, but also the excellent part of the truth, from which we can not only learn the legal lessons of our predecessors, but also learn experience, wisdom and ideals. In other words, people should try to seek even indirect, fragmentary or even dribs and drabs resources from historical and cultural ties with a positive and tolerant attitude, and never give up their efforts to seek various factors to promote the legal system construction in modern China from their own cultural traditions. If we give up this effort, we will lose the right to explain our own culture. Theoretically, without its own legal tradition and cultural foundation, China will become a country ruled by law. However, we should be deeply aware that even though the legal map of the real world is dominated by legal culture originating from the West, human culture has always been diversified. It was once the presentation of different experiences, wisdom and ideals of mankind, and it was also an important condition for mankind to move towards a richer, more balanced and more reasonable future. After all, the traditional legal culture in China has developed for a long time.

When the vast space and a considerable part of human living environment grow into the intellectual achievements of coordinating people, people and society, and social and natural, people are required to be people-oriented, have moral care and pay attention to the humanity of law when solving legal problems in the future. This also reminds people that what attitude should we take towards the connection between China's traditional legal culture and modern legal system?

In the face of history, adopting a positive attitude is largely determined by the inherent nature of history. In all human behavior, nothing is not restricted by historical laws. In the face of historical laws, people's creativity can be exerted, but the direction of life and society is still fundamentally restricted by it. Only by actively responding can it be possible to guide the historical driving force within society to the maximum extent. That is to say, as shown by the change of civilization mode caused by legal reform in China in history, the Chinese nation's adherence to and choice of civilization concept can never be changed by any individual or even a leader. It was, and still is, the internal force leading the construction of legal system. Although this power is not easy to be perceived, in fact it has partially defined the relationship between traditional legal culture and modern legal system.

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How to excavate, develop, transform and utilize the excellent elements of China's traditional legal culture has become a risky practice of China's legal modernization, which always warns people to operate cautiously. Simply put, it is to restrict, transform and abandon the use.

Traditional China has its own characteristics, which are moral decentralization and political control. Compared with the west, politics plays a decisive role in the social process and the turning point of history. Economy is regarded as a part of politics in nature, and its development cannot go against political goals and damage political structure and nature. Society is maintained by politics, controlled and driven by politics, so the culture of criminal and administrative public law is prominent. It can be said that this has constituted a prominent aspect of the historical immanence of traditional China. Before modern times, China always operated according to its inherent characteristics. At the beginning of modern times, the direction of China was forcibly reversed because of the intervention of the West, which dominated the process of world history. Like China, the West has its own historical path, which is different from that of China. As Marx revealed in German Ideology, the economic foundation determines the superstructure, politics ultimately serves the economy, and social development is driven by the economy, so the development of private law culture has become a tradition. With the expansion of foreign forces, western historical laws gradually invaded non-western regions, thus impacting, reversing, interrupting and even changing the inherent historical trend of non-western society at different speeds and intensities. Although traditional China is a giant in time, space, scale and cultural tradition, and has strong historical habits, the gap of the times finally forced it to change its direction under the impact of the West, from tradition to western-led modernity. In today's China society, coexistence is intertwined with two different historical motivations, one is the control of traditional China politics on society (economy), and the other is the decisive force of western economy on society (politics). The former is based on the strength of China tradition and historical inertia, which is the main aspect of the historical immanence of contemporary China; The latter originated from the modernity of western historical direction and became the main direction of China's efforts in modern times. These two forces will coexist in China society for a long time, and will advance in mutual agitation, entanglement and compromise until China truly becomes a modern country with its own characteristics. The legal situation is no exception. Specifically, China's legal system in the future is not only modern (cosmopolitan), but also local (national), which is the embodiment of the inevitable connection between China's social tradition and modernity, and also the reason why people are cautious when dealing with the connection between traditional legal culture and modern legal system. It shows that China's modern legal system cannot be a simple regeneration of traditional legal culture, but a fusion with western legal civilization. For China's traditional legal culture, this is a process of inheritance, transformation and eventually modernization, so it must be restricted, transformed and sublated. Let's think back. Isn't every change of China's management (control) social civilization mode completed in transformation and sublation? In addition, as an appropriate example, the humanistic spirit in China's traditional legal culture is also a good proof of the modern legal system.

It is true that China's civilization is humanistic, and China's legal culture contains humanistic spirit, but this spirit seems to have no direct way to become a part of modern China's legal system. Although humanistic spirit is a broad concept with historical connotation, China's traditional legal culture naturally cannot demand humanistic spirit in the modern sense, but humanistic spirit must include respect for individual personality value. Observing the legal culture of traditional China, it goes without saying that the essence is to affirm groups rather than individuals. Personal value is strictly restricted by identity, gender and blood class, and personal rights are subordinate to obligations. Compliance with obligations is the premise of realizing limited rights, not the priority of rights or the balance of rights and obligations. With people's social stratification, the deviation of rights and obligations increasingly reflects collectivism and official privileges linked by blood. In extreme cases, there is a danger that the group will replace and deny the individual, the blood relationship will replace the fact, the identity will replace the contract, and the official will replace the people. In fact, this danger has always existed and is quite realistic. This is what we should consider when we understand the humanistic spirit of China's traditional legal culture.

At the same time, we can't ignore the contradiction between instrumental rationality and value rationality in China's traditional legal culture. As far as western legal culture is concerned, the humanistic spirit of advocating personal value and personal dignity is not only an institutionalized instrumental rationality, but also a value rationality that dominates this system in spiritual principle. Although this perfect form of instrumental rationality and value rationality is also the result of the long-term running-in of western history, they always coexist in western legal culture. Broadly speaking, the humanistic spirit in China's traditional legal culture coexists; In a narrow sense, it seems to be separate. Broadly speaking, how the humanistic spirit in China's traditional legal culture corresponds to the legal system in modern China really needs limited reform.

China's traditional legal culture attaches great importance to life, so it has created some distinctive legal provisions, such as prison detention, execution in autumn and winter, replay, autumn trial and so on. In the world before modern times, these regulations and systems can be called benevolent and humane. However, humanistic spirit not only attaches importance to people's natural life, but also attaches more importance to people's spiritual life. It requires people not only to live, but to live with dignity. This dignity is legally embodied as human rights, and its core is the recognition and realization of human free will. Once people have no free will and the right to coordinate with each other, the essence of humanism will inevitably be limited. It seems that the traditional legal culture in China pays more attention to people's natural life than their spiritual life, and the merciful punishment reflects the feeling of rebirth. As for the personality, dignity and value of the pitied person, especially as a person's free will and natural rights, it is not the initial reason why his sin was forgiven and his life was valued, or that he did not reach the height of humanitarianism in a certain aspect of his spirit. In this way, does the humanistic spirit in China's traditional legal culture have the problem of shifting its focus and upgrading its realm in the face of modern society?

The humanistic spirit in China's traditional legal culture is mainly a value orientation, which expresses the goal pursuit of China culture. In Weber's words, it is just an ideal type. This ideal is related to the system and will also have an impact on the daily life of the public, but there is a distance between the ideal and the system, and between the system and reality. On the whole, the practice of traditional law in China gives people the impression that there is a great disconnect between ideal, system and reality. Although this disconnect is universal, the situation in traditional China is particularly prominent, which is why the ancients called "establishing a law" and "establishing it without using it" an ideal, and Professor Huang Zongzhi thought that the expression of civil trial in Qing Dynasty deviated from practice. Therefore, the humanistic spirit in China's traditional legal culture should not only be understood from three levels: ideal, system and practice, but also be inherited, reformed and innovated in the connection with modern legal system.

In a word, affirmation in understanding, positivity in attitude and caution in operation are our basic understanding and position on the connection between China's traditional legal culture and modern legal system.