What are the differences between the historical development paths of Chinese and western jurisprudence?

A Comparative Study of Chinese and Western Legal Cultures "

Through the comparative study of Chinese and western legal cultures and their historical and social backgrounds, this paper mainly discusses the differences between Chinese and western legal cultures in eight aspects, such as formation, norms, attributes, ethics, system, academics, spirit and value, describes in detail the origin of law, the spirit of value and cultural attributes, the basic formation and content of academic system, reveals the theoretical and institutional arrangements of legal cultural differences, conflicts and their coordination, and describes in detail the formation process of these differences.

Finally, in the ninth chapter, people are the origin and axis of culture, and no matter how complicated cultural phenomena are, they all emanate from the origin of people.

In this book, Mr. Zhang not only systematically discusses the differences between the two cultures and the reasons behind them, but also conveys to us a theory that all legal relations can and should be restored to human relations.

No matter what form these relationships take, people are ultimately the subject and origin.

China and the West have formed different cultures in coordinating the relationship between man and God, man and man, man and society, and man and nature, but in the final analysis, man is still the subject and source, and even God is a personified god.

From this book, I realized that if you want to understand a certain culture deeply, you can't get to the bottom of it, but you should go back to the source, take people as the starting point and look at the essence. Any study of culture and system that ignores human existence is superficial.

I am most interested in Chapter 7, which is also the chapter most closely related to today's development.

This article takes the seventh chapter as the breakthrough point to talk about the relationship between Chinese and western legal cultural traditions and the rule of law.

In the seventh chapter "The Spirit of Law: Rule of Man and Rule of Law", the author thinks that the traditional spirit of China law is "Rule of Man", while that of western law is "Rule of Law".

The law of "ruling by law" refers to the law that embodies the will of the masses with a democratic political background.

Traditionally,

The laws of both countries are used to maintain the ruling order of feudal countries. Based on groups, the color of "rule by man" is getting stronger and stronger. In addition, the clear division of rank and inferiority makes people fear authority and worship power, while ignoring the pursuit of individual rights.

In the west, with the development of productive forces and the continuous expansion of people's horizons, the religious law attached to God was disintegrated, which gave birth to the modern spirit of democracy, freedom and equality, and generally tended to be individual-oriented.

From the cultural attribute of law, the traditional legal culture in China is essentially a criminal or national legal system, while the western legal culture is a civil or personal legal system.

The author believes that the western countries can form the tradition of rule of law mainly in the following aspects: highly developed commodity economy, unique cultural tradition and bureaucracy.

Commodity economy is the material basis of the rule of law, and its development needs legal system to regulate.

At the same time, commodity economy has nurtured cultural traditions such as social contract view, political market view, ideological market view, subject consciousness, right consciousness, equality and freedom view.

However, the formation of the western rule of law is definitely not a purely commodity economy problem, and there is a cultural problem different from the commodity economy, that is, the theory of evil human nature.

The evil theory of human nature represented by Plato in ancient Greek culture has always been a deep-rooted cultural tradition in western culture.

This famous saying is widely circulated in western countries: "Power corrupts, and absolute power corrupts absolutely." In western culture, the rule of law is more reliable than the rule of man.

In China culture, Confucian culture, represented by Confucius, tends to be good in human nature, emphasizing "courtesy" to guide and control human nature and "virtue" to govern people.

The last aspect is that the earlier bureaucratization in the west is another prerequisite for the institutionalization of the rule of law.

As early as the Roman Empire, a huge and complete bureaucratic system was formed in the West. By the formation of the nation-state in the late Middle Ages, the establishment of bureaucratic system strongly supported the establishment of modern rule of law.

However, the author spent a lot of pen and ink to prove that there is no "rule of law" in the history of China, and the spirit of traditional law in China is "rule of man", but he did not systematically demonstrate the reasons for this phenomenon.

The author thinks that the spirit of rule of man in China law and ancient Chinese law (centered on criminal law) came into being at the same time, that is, the origin of the spirit of rule of man in China law came into being with the emergence of criminal law.

It also proves that the philosophical basis of the spirit of rule by man is the theory of good human nature and the theory of evil human nature.

It is concluded that the rule of man is gradually strengthened in China, and there are no other factors to limit its development.

The reason why the ancient society of China did not form the superior tradition of rule of law as that of the western society is due to its extremely profound social and cultural background.

By comparing the political, social and cultural differences between China and the West, the author introduces that there are many differences between China society and western society in the tradition of rule of law.

The root cause of 3.

Due to the different historical and cultural development paths between China society and the West, the unique historical and cultural traditions of China society have been created and bred.

However, the author did not systematically demonstrate the reasons for these differences, which led to two completely different legal traditions: "rule by man" and "rule by law".

The author thinks that China's legal tradition is "rule by man" because I mentioned China's "jurisprudence" tradition (centered on criminal law) and the Confucian theory of good and evil human nature. I think it should also include the following three aspects, namely, natural conditions, economy and religion.

First, the differences in natural conditions.

There was no "rule of law" in ancient China, but there was "rule of law" in the west, which was related to the natural conditions in China.

However, due to the differences in natural conditions, the city-state society appeared in the west.

In ancient China, the vast territory was separated by mountains and rivers, which made it impossible for people to have a close political life and to implement the "direct democracy" system among the people.

The western city-states have few villains and many neighbors, and are familiar with each other. It is easy to implement the parliamentary system and is conducive to direct democracy.

"Direct democracy" means that the politics of the polis belongs to the citizens of the whole polis, and the citizens directly participate in the governance of the polis.

In order to ensure direct democracy, that is, to ensure the determination of city-state citizenship, the division of rights and obligations, the establishment of administrative institutions, the choice and authority of courts, there was a constitution.

(4) Since the city-state is a citizen's group, it must also be a democratic collective, and people must also believe in the legal system that protects democracy.

The concept of rule of law developed under the background of the political and cultural space of the Greek city-state is manifested in the rational spirit of freedom, equality and justice, which is the core and essence of the political culture of the citizens of the city-state. Under the influence of the concept and spirit of the rule of law, the citizens of the city-state showed their firm belief in the rule of law.

⑤ In short, city-state democracy is the institutional premise of the rule of law.

However, China is a vast country with huge differences in geographical environment, customs, national culture and language, so it is difficult to form a citizen group like the Greek city-state.

Farmers, who account for the vast majority of the population, are scattered all over the country. Coupled with the self-sufficiency of the small-scale peasant economy, there are few economic or cultural exchanges.

In such a huge country, it is difficult to form a "direct democracy" like the Greek city-state.

On the contrary, the geographical and economic environment in ancient China was more like a hotbed for cultivating autocratic politics.

In order to maintain the operation of this huge country, autocratic politics has naturally been chosen, and the hierarchical authoritarian political pattern has long been the foundation of the whole social structure of China.

In such a cultural tradition, the demand for the rule of law is extremely weak, because politics can completely provide all the needs for its people, only at another level of value.

Even a little call for the value of the rule of law is overwhelmed by the suppression of powerful political public power.

In such a society, the formation of the rule of law tradition is far away.