Jurisprudence:The Evolution of Law

Section 2: The Development and Tradition of Law

I. The Development of Law

Different Western jurists have different generalizations and opinions about how law has developed and changed in human society. The English jurist, Maine, believed that the development of law was a movement from identity to contract. The German thinker Weber believed that the development of law is a process of development from irrationality to rationality and from substantive rationality to formal rationality. The American jurists Nonet and Selznick see the development of law as passing through three stages: repressive law, autonomous law and adaptive law. Marxist jurisprudence sees law as a process of sequential turnover from one historical type to another.

According to the understanding of Marxist jurisprudence, the so-called historical types of law refer to the categories of law according to the nature of the national will embodied in the law and the economic base on which it is built. All laws that are built on the same economic basis and reflect the will of the same class are of the same historical type. According to this criterion, the laws of history can be divided into four historical types, namely, slave law, feudal law, capitalist law and socialist law. They correspond to the four social forms of slavery, feudalism, capitalism and socialism respectively. The first three, being based on the private ownership of the means of production, can be collectively referred to as the exploiting class type of law. The socialist legal system is fundamentally different from the exploitative class type of law, which is based on the socialist system of public ownership of the means of production, reflecting and safeguarding the interests and will of the masses of people led by the working class, and is the highest historical type of law.

The development of law from slavery to feudalism, and then to capitalism and socialism, is the general law and general trend of the development of law in human society. Specifically to each country, the law of the nation does not necessarily go through these four historical types. The reason why the law of human society can inevitably develop from one old historical type to another new historical type is fundamentally due to the movement of basic social contradictions. In other words, the law of movement of the basic contradictions of society is the fundamental reason for the turnover of the historical types of law. However, the change of the historical type of law cannot be realized spontaneously, but must be realized through people's conscious revolutionary change. In other words, the social revolution is the direct cause of the historical type of law alternation.

The replacement of the historical type of law means the negation of the old historical type of law and its replacement by the law embodying the will of the new class, but this does not deny the existence of historical connection and critical inheritance between the new law and the old law.

Second, the law of inheritance and law transplantation

(a) the meaning of the law of inheritance and the root

The law of inheritance is the continuation of the different historical types of legal systems and succession, generally manifested in the influence of the old law on the new law, and the new law on the old law of the inheritance and succession. The succession of law is objective, the law is in the succession of development. As a cultural phenomenon, the development of law manifests itself in the process of cultural accumulation, and its succession is inevitable. The class nature of the law does not exclude the inheritance of the law, socialist law can and must draw on capitalist law and other types of law.

The grounds and reasons for the succession of law are mainly expressed in the following aspects: (1) The historical continuity of social living conditions determines the succession of law. The economic development of human society has continuity, and each stage of history encounters a certain material result, a certain amount of the sum of productive forces, and the relationship between man and nature and between man and man formed in history encounters a large amount of productive forces, funds and environment passed on from the previous generation to the next generation, and even though, on the one hand, these productive forces, funds and environment have been altered by the new generation, but on the other hand, they predetermine the the conditions of life of the new generation, giving it a certain development and a special character. The economic base determines the superstructure, and therefore the law, which is an integral part of the superstructure, must be successive. (2) The relative independence of law determines the continuity and succession of the process of development of law. Law is not only subject to a certain economic base, and the economic base has a counteraction, the economic base has changed, the legal system and legal concepts will not all disappear, the emerging class will be utilized to varying degrees. The development of law has its own relatively independent development path. The relative independence of law determines the continuity and succession of the process of legal development. The relative independence of law is a manifestation of the relative independence of social consciousness. The relative independence of social consciousness refers to the fact that while reflecting the existence of society, social consciousness also has its own dynamism and unique development law, which lies in the fact that the social consciousness and its forms in each historical period have a relationship of inheritance with its previous achievements. (3) As a fruit of human civilization, law determines the necessity of its inheritance. In the course of the historical development of law, the legal forms, terms, concepts, canons, writings, etc., formed by different laws become the ****same cultural achievements of mankind and are handed down from generation to generation as cultural heritage. (4) The historical facts of the development of law verify the inheritance of law, such as the French bourgeoisie based on the Roman law of the era of slavery to formulate the French Civil Code.

(2) Transplantation of law

Transplantation of law refers to the introduction, absorption, adoption, ingestion and assimilation of foreign law on the basis of identification, recognition, adaptation and integration, so as to make it an integral part of the national legal system for the use of the country. The inheritance of law reflects the successive relationship in time, while the transplantation of law reflects a country's absorption and reference to the legal systems of other countries at the same time, and the scope of the transplantation of law includes international laws and practices in addition to foreign laws.

The transplantation of the law has its inevitability and necessity: (I) social development and the development of the law of the imbalance determines the inevitability of the transplantation of the law, the more backward countries in order to promote the development of society, it is necessary to transplant some of the laws of the advanced countries. (2) The objective laws and fundamental characteristics of market economy determine the necessity of transplantation of laws. Market economy requires breaking through all territorial limitations, bringing the domestic market into line with the international market, and turning the domestic market into a part of the international market, so as to achieve the internationalization of production, trade, materials and technology. Whether a country can become a member of the international unified market depends to a large extent on the country's legal environment, and thus requires the reference and introduction of the laws of other countries, especially the legal principles and norms prevailing in the world. (3) The modernization of the rule of law is both the basic content of social modernization and the driving force of social modernization, and the transplantation of law is a process and way of the modernization of the rule of law, so the transplantation of law is an inevitable need for the modernization of the rule of law and social modernization. (4) The transplantation of law is the proper content of opening up to the outside world.

The transplantation of law has the following types: first, economic, cultural and political in the same or basically the same stage of development and level of development of the countries absorbing each other's laws, so as to converge and convergence; second, backward countries or developing countries directly adopt the laws of the advanced countries or developed countries; third, regional legal unification movement and the world's legal unification movement or the globalization of law.

The transplantation of law is a very complex task, and it is necessary to avoid blind transplantation without selection, to choose the excellent laws suitable for the national conditions and needs of the country for transplantation, to pay attention to the isomorphism and compatibility between foreign laws and national laws, to pay attention to the systematic nature of the legal system, and at the same time, the transplantation of law should have the appropriate advancement.

Third, the tradition of law

The tradition of law refers to the concept of law, the sum of the system, which has been passed down from generation to generation and from generation to generation. To understand the concept of tradition of law, you need to first understand the concept of legal culture. Legal culture in our country has two broad uses: one is to use legal culture as an analytical tool, trying to put forward a new perspective to observe legal issues. Cultural interpretations and cultural perspectives on law all fall into this category. The other is to use the concept to refer to a specific object. The latter usage can be further divided into two cases: one considers that the legal phenomenon contains some contents of ****same legal knowledge, consciousness, technology, adjustment methods, etc., formed in the development of the human society, which belong to the spiritual wealth of the society, reflecting the progress of the law, and which can be referred to as ? Legal culture? The other distinguishes the laws of different societies into different cultural types according to the different types of culture, and tries to find the spiritual connotation of a culture from its historical continuity and then explains and interprets the particularity of the law of the country or the territoriality of the law. The above mentioned various studies on? Legal culture The use of the term "legal culture" is an attempt to understand the phenomenon of law from the perspective of tradition, so that, in general, one of the main achievements of the study of legal culture is to reveal the intricate relationship between law and tradition.

After entering the 20th century, due to the rapid development of comparative jurisprudence, the specificity of the law of each country and nation gradually received universal attention. The differences in national historical traditions are one of the important reasons for the differences in the law of various countries, especially in the field of legal technology and consciousness. Therefore, the tradition of the law, not only has the empirical sense of historical value, but also may constitute a part of the real legal system.

The reason why the tradition of law can be continued is, to a large extent, because of the strong inheritance of legal consciousness, that is, the legal system of a country can often change with the changes in the national system and the structure of the regime, but the legal consciousness of the people is relatively stable, with a certain degree of continuity. Therefore, legal consciousness can make a country's legal tradition to continue.

The so-called legal consciousness refers to the general name of people's thoughts, concepts, knowledge and psychology about the legal phenomenon, which is a special form of social consciousness. It can be structurally divided into two levels: legal psychology and legal thought system. Legal psychology is people's superficial and intuitive perceptual knowledge and emotion of legal phenomenon, which is the primary form and stage of legal consciousness. The legal thought system is the advanced stage of legal consciousness, which is characterized by rationalization, theorization, intellectualization and systematization, and is the product of people's rational understanding of legal phenomena, as well as the form of people's conscious reflection of legal phenomena.

Legal consciousness and other legal phenomena, such as legal norms, legal system, legal behavior, etc., have both organic connection and relative independence. According to the viewpoint of historical materialism, on the one hand, the legal system and legal consciousness as an organic part of the superstructure is subject to the constraints of the economic base, the economic base determines the nature and development of the superstructure; on the other hand, in the legal consciousness and the legal system between each other, and the legal consciousness is relatively independent of the legal system. It may exist before the legal system, and may lag behind the development of the legal system.

Fourth, the two major legal systems in Western countries

The legal system is a basic concept in comparative jurisprudence, specifically referring to the classification of law according to the historical tradition of law and the external characteristics of the different law. According to this categorization, all laws belonging to the same tradition constitute a legal system.

The theoretical basis for the division of legal systems is mainly the tradition of law. According to this criterion, the laws of the world can be divided into a limited number of different categories. Historically, many legal systems have existed in the major regions of the world, such as Indian law, Chinese law, Islamic law, civil law and common law, and so on. The most influential ones in the world today are the civil law and common law systems.

Civil Law System (Civil Law System), refers to the ancient Roman law, especially in the early 19th century, the French Civil Code for the tradition of the emergence and development of the law. Because the scope of influence of this system of law is mainly in the European continental countries, especially France and Germany, and the main form of legal expression for the code, so also known as the civil law system, Roman a German law system, code law system. Belonging to this system of law, in addition to the continental European countries, there were France, Germany, Portugal, the Netherlands and other countries such as the colonial countries and for other reasons by its influence on the country. For example, in Africa, there are Ethiopia, South Africa, Zimbabwe, etc.; in Asia, there are Japan, Thailand, Turkey, etc.; in addition, there is the province of Quebec, Canada, the United States of America, Louisiana, Scotland and so on. It can be seen that the civil law legal system is a very broad influence of the legal system.

Common Law System (Common Law System), refers to the British medieval law, especially the common law as the basis and tradition of the law and the development of the general term. Because it is mainly derived from the British common law, known as the common law system, the British law system; and because it is the main form of expression of the law of the case law, and therefore known as the case law system; because in modern times it is composed of two branches of British law and the United States of America, and also known as the Anglo-American legal system. The scope of this system of law, in addition to the United Kingdom (outside Scotland), mainly for the British colonies, many countries and regions, such as the United States, Canada, India, Singapore, Australia, New Zealand, and individual countries and regions in Africa.

The civil law system and the common law system belong to the Western countries, and the countries affected by it are mainly capitalist countries and industrialized countries, so they have a lot of **** the same, such as in the economic base, class nature is the same, and attach importance to the rule of law, etc., but due to the differences in their respective traditions, there are certain differences between them. These differences, from a macroscopic point of view, can be divided into:

First, in the legal way of thinking, the civil law system belongs to the deductive thinking, while the common law system belongs to the inductive thinking, focusing on analogical reasoning.

Second, in the source of law, the civil law system, the formal source of law is only the enactment of the law, while the common law system in the enactment of the law, case law are the formal source of law.

Third, in terms of the classification of law, the civil law system countries generally take the division of public law and private law as the basis of the classification of law

, while the common law system is the common law and equity as the basic classification of law.

Fourthly, in terms of litigation procedures, the civil law system is close to the ecclesiastical law procedures, which are inquisitorial, while the common law system adopts the adversarial system of litigation procedures.

Fifth, in terms of codification, the main stages of development of the civil law system have a representative code, especially in recent times, a large-scale codification activities. The common law system had a relatively large-scale legislative activity during the Tudor period, and the number of enactments has been increasing in recent times, but on the whole, there is no tendency to carry out systematic codification.

In addition, there are many differences between the two legal systems in terms of the court system, legal concepts, techniques of legal application and legal concepts.